Modify Child Support
How to Modify Child Support
Many individuals paying child support want to know how to modify child support due a change in circumstances and also how far back in time will modifications to an existing court order be effective.
Modifying Child Support
The four stages of child support modification are:
- Establish reasons for child support modification
- Identify the methods for modification
- Calculate the retroactivity date for special cases on retroactivity
- Minimize the penalty of delayed child support modification
Valid Reasons to Modify Child Support
Before child support can be modified, a legitimate reason for change of income must be proven. And typically it will involve a change of employer, a promotion, provable self employment increases or decreases, a layoff or unemployment for any legitimate reason. All child support lawyers agree that the change in income must be provable and legitimate. The law books are filled with instances where requests for reduction and support based on false income or hidden income have been denied.The most important aspect in your quest to modify child support obligations is by building a mathematically sound evidentiary foundation for a claim of loss of income or claim that the other party has increased income and proving for or against claims that income is hidden or under-reported is also important.
Methods of modifying child support or terminate an existing child support order
If both parties agree to modify child support then they must sign a written agreement. Traditionally, this stipulation is filed in court and both parties keep a copy. An agreement should be supported by evidence so that it cannot be challenged later. It is important to remember that Child Support is not contract law and just because support was reduced and the other side cashed all the cheques or spent all the money does not change the status of the previous child support order until it is ratified by the Court.
Of course if there is no agreement between the parties then a Court hearing is almost inevitable which requires the above mentioned valid reasons for modification to be presented to the Judge.
Arrears when Modifying Child Support
Arrears are a ticking time bomb and may be remedied against a non payer by enforcement or attachment or even contempt. Do not make the mistake of assuming that because you’re in a lengthy negotiation that child support modification can be set to start the month you started negotiating. If there are no new orders, there is no modification of child support. So file first and talk later is another litigator’s tip.If you are going for an increase or decrease modification of child support file first and try to settle later, otherwise you end up giving the other party additional weeks to find a lawyer and then negotiate by lengthy settlement talks. As these ‘settlement talks’ are ongoing the retroactivity date has not been set and support continues to hum along at the old rate.
Hybrid Approach to Modify Child Support
There are two important reasons to take a hybrid approach to modify child support. If you write a single reasonable letter with a reasonably tight deadline before filing the application you’ll be able to use any unprotected letters in the assessment of attorney fees and as proof of cooperation. And this phase becomes important if you do end up in court.
Establishment of the Retroactivity Date
Retroactivity is carefully controlled by statute and there are no equitable and no fairness remedies allowed, even if the existing order is incorrect up or down. The basic retroactivity date of an order modifying child support is established by two strict parameters, one no earlier than the date of filing. The second part of the law gives the judicial officer full discretion to choose a later but not an earlier date to apply based on the date of filing so always file immediately.
Typically a support modification date will be set no later than 30 days after the date of the hearing. So if you don’t have sufficient proof, or you don’t have everything ready for Court and the hearing is adjourned, you’re not going to get that date of filing, you’re going to end up having it possibly months after you file, because it’ll be no later than 30 days after the date of the hearing.
Retroactivity for Unemployment
Retroactivity in child support modification will usually be the date of actual unemployment, but may also be made earlier for good cause, according to proof.
Increase Child Support Payments
What happens if the child support you have received is so low that your child’s needs are no longer covered by the basic care? One thing is certain: life is unpredictable, and even the most thoughtful childcare plan must be adjusted at all times. If circumstances change, parents can ask the court to change the amount of child support up or down.
The conditions for amending a maintenance claim vary from state to state, but the applicant parent must prove that circumstances have changed since the child support order was issued to change the maintenance payments. A material change in circumstances could be due to the age, health status or other circumstances of a child. Many parents have seen their child support payments rise or fall with their salary.
If a parent receives a large bonus or overtime over the Christmas period, the pay rise is likely to be temporary and not mean an increase in child benefit. A material change in circumstances is not a temporary change, and if the parent works in a crisis-ridden industry and has to take an involuntary pay cut, a judge can reduce his maintenance obligations. If the parents have quit their job or have taken a low-paid job in order to reduce the amount of maintenance payments, the judge may change the maintenance obligation of the parents concerned, even if they quit their job and take a lower-paid job in order to reduce their maintenance obligations under the law.
Parents can make their own maintenance arrangements, but it is still important to obtain court approval for changes to child support payments. The conditions for amending a maintenance claim vary from state to state, and applicants and parents must prove that circumstances have changed since the maintenance order was issued in order to change the maintenance payments and the personal circumstances of the parent.
In most states, the first step in converting an agreement into a modified maintenance order is to fill out the correct form and file it with the court. Parents wishing to change maintenance must apply to the court and apply for a new maintenance claim, otherwise the original maintenance order will remain in place and could be enforced by other parents.
If parents cannot agree on a change in maintenance, they can go to court and a judge will hear evidence and decide whether the change in maintenance is appropriate. If the judge considers that it is based on substantial changes in circumstances and serves the best interests of the child, the court may approve the changes. This means that there are no additional legal fees for parents and no additional fees for other parents.
If an ex wants to increase child support, he must show that changing child support is inappropriate. The ex has evidence that circumstances have changed significantly to justify an increase in maintenance. For example, a slight increase in salary after remarriage may not be enough to justify changing child support. However, you may need to show the court that the change is temporary, such as a bonus or risk payment, and is not relevant to you. There are many reasons to change or cut maintenance payments, up or down, but sometimes it just has to be a change.
If you had several children with your new spouse before the original maintenance order was issued, the judge may agree to a reduction in maintenance due to additional expenses.
If an unemployed parent cannot find work at a corresponding wage, the judge can reduce child support by taking into account the parent’s current income. If a parent loses his or her job as a result of a reduction in the size of the company, that loss may be beyond the control of that parent.
The legal process to modify child support can be complex, and the judge may not be willing to make a change in maintenance unless the applicant has a good argument that this is in the child’s best interests. If the other parent of the children is not prepared to adjust the alimony, you are likely to end up in court. However, if you are not sure what to do in your case, consult an experienced family lawyer who can advise you on your rights and, if necessary, represent your interests in court.
Applicants Must Give a Legal Argument to Modify Child Support
Whatever state that you’re in, if you want to change something with the court, you’re going to have to tell the court why it should be changed. So this is where the facts become very important. You don’t just state the legal standard, the legal basis for changing and saying you want to change because there’s been a change in your situation. You must always quantify and say why.
You may say maybe it’s been five years since the original custody and parenting plan has was entered. So time has passed. But keep in mind, time alone is probably not going to do it. You may add on, for example, and say your child is doing differently in school than he or she was before. Recently there’s been a decline in grades or that the school is closing down. Maybe you’ve gotten remarried or are in a new relationship. Maybe the child has new siblings or step siblings. There are a lot of reasons why a case may be changed and you have to set those forth. You have to tell the judge exactly why you’re requesting the change. Details matter, facts matter. And if you don’t lay it out there, you could end up with your case dismissed without you having a chance to talk to the judge about it and plead your case. So when you’re preparing your paperwork, look at the facts of your case, get into them, describe them for the court, give the judge the the flavor for your situation and give the judge the reasons why he should give you what you’re asking for.