Many parents assume that once child support orders are in place, that’s it. They’re fixed.
However, just as personal circumstances can change, so can one’s obligations with regard to child support payments.
Individuals who enter into a child support agreement may be able to adjust it. That’s if they can justify doing so.
It won’t happen automatically but it will happen if you take the necessary steps.
Most family law attorneys from Colorado Legal Group, for example, can advise you on how to modify child support payments. Let’s look at the main considerations below so that you understand more about the legal process.
Want to modify child support payments? What grounds do you have?
In general, child support obligations are based on both parents’ incomes, certain expenses that are paid for the benefit of the children, and the number of overnights that each parent has with the child (or children).
For example, some state law stipulates that a child support agreement may be modified if:
- There is a “substantial and continuing” change in circumstances, or
- The current order does not contain a provision regarding medical support
So, if the receiving party requires more (or less) assistance to cover the children’s reasonable needs, then a modification may be justifiable.
Modifying child support will usually be done in order to cover changes to any of the following types of circumstances:
- The number of overnights involved for each parent
- One or both of the parents’ incomes
- Expenses paid for the benefit of the children, such as daycare or medical support expenses
The age of a child may also be a factor, of course. When a child reaches 19 (the “age of majority”), they are considered independent, unless there is mental or physical disability meaning that the individual cannot care for himself/herself.
In regards to “substantial and continuing” change, the law is quite specific about what constitutes “substantial”. This is a 10 percent change in the amount of support owing (not a 10 percent change to a parent’s income).
A “continuing” requirement usually requires a change of situation for more than a few months – perhaps 12 months or longer.
So, if a father paying child support is made redundant, this won’t instantly justify a modification to child support payments.
However, if the period of unemployment lasts for a year or more, this could then make a modification more justifiable.
There is not too much “gray” area here.
Start by doing the math. If it adds up and can be shown to be a “continuing” situation, you may be able to modify the existing child support arrangement.
What is retroactive modification of child support?
So far, we have focused on the standard way to modify child support: it is non-retroactive, meaning that the court only approves a change in payments for the future.
However, there is also such a thing as retroactive modifications of child support. This is where a modification to the agreement applies to the date of filing or before.
The court can approve this in cases unless “it would cause undue hardship or substantial injustice.”
The problem with retroactive modification in this instance is that “undue hardship” is subjective and difficult to prove.
The order will never be retroactively modified prior to the date of filing unless there has been a mutually agreed-upon change of physical custody.
In these cases, the obligation “shall be modified retroactive back to the date of a court-ordered or agreed change.” This is generally the date when the physical care of the child was changed.
Note that in all cases there is a five-year limitation on retroactivity.
What are the legal requirements for modifying child support payments?
You may originally have created your own child support agreement. Parents can also agree on modifications to the original.
It is common practice for parents to exchange financial information each year to see if an adjustment needs to be made to the existing order.
This requires keeping good financial records.
Don’t fall into the trap of thinking that everything is fine and everybody trusts each other so there is no need to keep track of all your child support payments (including insurance, medical expense payments, daycare expenses, etc.)
By keeping accurate financial information and exchanging this information with the other parent, you can do the calculations yourself and agree on a new number without a court hearing.
However, these should never be regarded as “handshake” deals. You will usually need a child support attorney to advise you.
Agreements that you make with respect to child support are not binding on the court. Significant problems can arise if you don’t get the modifications legally recognized.
In short, you cannot bypass the legal process or prevent the court intervening and awarding a level of support that is in the best interests of the child or children.
It is always best to seek the advice of a good child support attorney to help you modify child support agreements.
How will the new child support payment calculations be made?
Each state has its own set of child support guidelines when calculating how much a parent could reasonably be expected to contribute towards child support.
Its calculations are always based on the best interest of the children.
A child support calculator is used to reach agreements about modifications on the amounts to be paid.
Each party’s income, the amount of time each parent spends with the child(ren) and who pays the other expenses like insurance premiums are all re-considered when modifications are made.
If an alternate amount of child support is agreed between parents, they will need to show the court that it is in the best interests of the children.
A final word: is the modification really necessary?
Just because you now know how to modify child support payments, it doesn’t necessarily mean you should do it.
In cases where parents have similar incomes and parenting duties, child support payments may be minimal.
A job demotion might result in a greater than 10 percent change in support owing, for instance.
However, the potential savings might not be worth the legal costs of modifying the agreement.