Whether you're paying child support or receiving support for one or more children living with you, you may think that the current amount should be different, for any number of reasons. As with everything related to child support, states have specific rules about modifying child support orders. That doesn't necessarily mean you have to hire a lawyer and go through a court battle in order to change your existing support order. But you do need to understand how to request a child support modification and how to justify your request—or, if you're on the other side, how to fight a modification request.
If you already have a child support order, you probably know something about the role of your state's child support guidelines. Even if you and the other parent agreed on an amount that one of you would pay, a judge wouldn't have approved the agreement and issued a formal order unless the amount was in line with the calculation under the guideline formula—or there were valid, legally acceptable reasons for departing from the guideline.
Just as with initial support orders, judges will follow the guidelines when deciding on a modified amount of child support. But first, you'll need to meet the threshold requirements for the judge to consider a modification request. The details of these requirements vary from state to state, but the general outlines are similar.
When you're requesting a child support modification, you'll usually need to show that there has been a change in circumstances since the existing order was issued, and that the change:
Typically, there are exceptions to this changed-circumstances requirement when you're requesting a periodic review of your child support order from a state agency (more on that below). Also, depending on where you live, you might not be allowed to ask for a modification unless a certain amount of time has passed since the existing order was issued, no matter how much your situation has changed.
There are many developments in a parent's life that could meet the changed-circumstances requirement, but here are some common examples:
Generally, a parent's remarriage isn't a valid reason on its own for changing the amount of child support. That's because most states don't include a new spouse's income as part of the child support calculation. However, parents' living expenses might be lower after they've remarried or moved in with a significant other—which could affect the amount of their own income that's available for child support.
Some states provide for automatic cost-of-living adjustments (COLA) in child support orders every two years or so. In other states, you may request a modification based on a significant increase in the cost of living. But that doesn't necessarily mean a judge will grant your request, particularly if the paying parent hasn't seen a salary increase (more below on winning or fighting modification requests).
As a general rule, judges may not change child support amounts retroactively. That means any changes won't take effect before a parent filed the formal modification request. So it's important to move quickly when you need to change the amount of support you're paying or receiving because your circumstances have changed.
Despite the rule against retroactive changes, any parents who've been behind on their support payments will still have to pay the past-due amounts (known as "arrearages"), even when a judge has lowered their current support obligation under a modified order.
There are basically three ways to request a change in child support: by agreement, by requesting an agency review, and by filing a formal request with the court.
You and the other parent are always free to agree on a change in the amount of child support. But you must submit your agreement for a judge's approval, so that it can be made part of an official court order. Otherwise, you could run into serious problems. For instance:
When you do submit your modification agreement, the judge won't automatically approve the change. Instead, the judge must ensure that any agreed change to the support amount will meet the child's needs, in line with the state's guidelines.
All states have agencies that help parents collect child support. Under federal law, those child support enforcement agencies must also have a process for reviewing existing child support orders to see if they need adjustments, based on the parents' current finances and other circumstances.
You'll need to request this review unless the agency is already handling your child support case—for instance, because the family is receiving public assistance or the recipient has asked the agency for help establishing a child support order (outside of the divorce context) or collecting court-ordered support.
Parents are automatically entitled to an agency review of their child support order every three years. But you might be eligible for a review sooner than that if you've experienced a substantial change in circumstances during that time.
If you aren't already receiving services from the agency, you'll have to apply for those services before requesting a review of your support order. You can find more information and local agency contacts in this state-by-state guide to changing child support from the federal Office of Child Support Enforcement. Once you get to the local child support agency's website, you'll usually find an FAQ and a link to apply for services.
Both parents will need to provide current financial information and documentation for the agency's review. If the review results in a recommendation to change the existing child support order, the agency will typically handle the modification request directly with the court. But both parents will have the opportunity to object to recommendation and the request.
Either parent may file a motion (a formal request in court) to modify child support. Generally, you'll file the modification motion in the same court that issued the existing child support order. But if the custodial parent has moved out of state with the child since then, you should speak with a lawyer to find out how to proceed.
With your modification motion, you'll need to explain why you believe there's been a qualifying change in circumstances since the date of the existing support order. Here again, both parents will be required to submit financial affidavits and supporting documentation about their current income, assets, debts, and other expenses.
The court will schedule a hearing on the modification request. Both parents will receive notice of the hearing date, and they'll have the right to appear and argue for or against the requested change (more on that below). The judge will consider all the evidence, including the parents' testimony, before issuing a decision. Either parent may appeal that decision within a certain period of time.
Both parents should receive a copy of the judge's decision, and either of them may appeal within a certain period of time.
If you've requested an agency review of your child support order, and the agency has recommended a change in the order, you're well on your way to winning a support modification. That's because judges tend to follow the agency's recommendation, unless the other parent provides compelling reasons otherwise. The judge knows that the agency has considered all of the necessary financial information and has applied the state's rules in making its recommendation.
Without an agency review, if you want to get a child support modification, you'll need to convince the judge that the change in circumstances isn't temporary and is substantial enough to warrant a change under the state's current child support guidelines. When you've requested a reduction in support based on your income loss, you'll also have to provide evidence that the change wasn't voluntary. For instance, you might provide letters from your doctors and other evidence to back up your claim that you were forced to quit a job that was endangering your physical or mental health.
When the custodial parent is seeking to increase your child support payments, you'll also need strong evidence to counter that request. For example, if the request is based on an increase in your earnings, you could show that the change is temporary, such as a one-time bonus or overtime pay that's not going to be a regular feature of your job. You could also show that the bump in earnings isn't substantial enough to justify a change in support.
Remember that the judge will examine both parents' finances when considering a modification request. So you might be able to argue that the support amount shouldn't go up—or maybe even should be lower—because the custodial parent has inherited money or has also seen an increase in income.
There's one thing you should not do to fight a request to modify child support: refuse to provide accurate and complete information about your finances. There's no need to make regular reports about any changes to your income—unless your child support order includes that requirement. But anytime an agency is reviewing a child support order or the other parent has filed a motion to modify support, you must respond to the request for information and supporting documents about your finances. If you refuse—or if the other parent shows that the information you've reported is misleading or incomplete—the judge or agency may "impute" income to you.
Parents who are seeking a change in child support are often dealing with financial struggles—which means they don't have the money to hire a lawyer to represent them in court. Obviously, the easiest way to avoid legal fees in connection with a modification request is to reach an agreement with the other parent. Short of that, however, you also shouldn't need an attorney to get an agency review of your existing order. These agencies are set up with the goal of helping parents deal with child support issues without having a pay for lawyers to represent them, and they typically provide accessible procedures for objecting to their recommendations.
Also, as we mentioned above, the agencies will often handle filing a modification request in court after they've conducted a review and concluded that a change in support is warranted. Even if you need to file a modification request on your own, state courts often provide simplified procedures and forms, so at least some parents should be able to handle these proceedings on their own. You can usually find this information online through your state's court system or self-help center.
However, you could be at a serious disadvantage without a lawyer's help in certain situations, including when:
If you're faced with these or any other circumstances that could complicate your modification case, you should consider at least speaking with an experienced family law attorney who can evaluate your case and advise you on how to proceed.
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