Many divorced parents are faced with this common situation: they divorced several years ago and agreed to monthly child support payments. However, their situation has now changed. Perhaps they were laid off from a good-paying job or there was a reorganization at their company, and now they’re making less money.
Regardless of the situation, you should understand your legal duties and the options that are available when it comes to child support modifications.
You’ll find that the child support laws are unique to each state, but the basic are much the same regardless of where you live. Here are some of the key points to consider when attempting to get more child support:
Child Support Factors
Parents have a legal duty to financially support their children, and generally family law courts determine child support by weighing the following factors:
Each parent’s income or potential income if unemployed;
The number of children in the family;
Each child’s medical and educational expenses;
What each parent pays for the children’s health insurance;
If either parent pays alimony or child support for other children; and
The specific terms of the custody arrangement.
Many state courts use some type of generic model or worksheet to calculate child support. The family court judges will look at the parents’ combined income to determine the amount that should be spent on the child each month.
The judge then assigns a percentage of that monthly amount to each parent in proportion to their respective incomes (it could be a 50-50 split, 70-30, or another percentage). The non-custodial parent (the parent who doesn’t have the children living with him or her) pays his or her percentage to the custodial parent.
A Substantial Change in Circumstances
While the exact requirements for asking for more child support differ in each state, typically to increase (or decrease) child support payments, the requesting parent must show that after the existing order was put in place, a substantial change in circumstances occurred, like a change in the child’s needs, an increase in salary, or involuntary unemployment. This can include a substantial increase in the non-custodial parent’s (paying parent) income.
This usually must be shown to be at least 10 or 15%. Likewise, if there is a substantial decrease in the custodial parent’s income (usually the same percentage). The change may also be requested due to a substantial increase in the child’s needs. This may include medical expenses, educational expenses, age-related expenses, or cost-of-living increases.
The child may contract a serious illness requiring additional treatment and care. The child may move from a public to a private school with substantial tuition. Or perhaps, the child wants to play the piano and needs money for music lessons.
The court will examine whether a change is in the best interests of the child and that he or she is able to live in reasonably equal circumstances when residing in either parent’s home.
Know that a change won’t be accepted by the court when it’s intentional. For example, if the custodial parent leaves his or her position or takes a substantial pay cut voluntarily, it won’t qualify as a reason for upping the support payments from the other parent.
As a general rule, an ex-spouse’s remarriage should have no effect on the child support determinations. A new spouse isn’t responsible for child support, and in most states, family law judges won’t decrease a paying parent’s child support obligations because the custodial parent remarried.
However, the non-custodial parent could contest the original agreement if he or she believes that it is now unfair, especially if the new spouse can provide additional financial assistance for the child. In that instance, the non-custodial parent’s child support obligations may be modified.
Again, child custody orders won’t be modified based on the non-custodial parent’s remarriage by itself. The fact that the non-custodial parent gets remarried will not alter his or her child support responsibility. However, the new couple’s combined income is drastically higher and his or her personal disposable income has increased substantially as a result of the new marriage, there may be a valid argument for a modification.
Generally the court will not consider the financial support for children from a previous marriage to be the legal responsibility of the new spouse. But the ex-spouse is not foreclosed from making an argument for more money. While it’s not common, the combined assets of an ex-spouse and his or her new spouse generally don’t impact the court’s determinations.
Rules on Requesting a Change
It’s important to remember that your state may place a limit on how frequently you can request the court reconsider child support awards, such once every three years. In that case, even if there was a substantial change in circumstances (either positive or negative) a few months after the last change, a parent would have to wait until the three years had run before asking the court for another modification in child support.
It’s also important to note that child support modifications can either be permanent or temporary—this is based on the circumstances. A temporary modification of child support may be granted because of a child’s or a parent’s medical emergency, or a paying parent’s temporary lay-off from work. A temporary modification of child support can also be granted due to a temporary change of child custody if one parent must be hospitalized or out of the country for an extended period of time.
Document the Change
You may experience a job change, a demotion, a lay-off, or a medical disability that significantly alters your household income. The key is that you’ll be required to show a significant change in your circumstances.
It’s common for a parent to feel the pinch of paying child support obligations when they are terminated involuntarily from a job. When asking for a child support modification, the parent must make a serious effort to find new employment. He or she should document the job applications, interviews, and job research.
Speak to your family law attorney about a modification of child support if you’ve experienced a significant change in circumstances.
Remember to document the change and that you may have to wait to petition the court for a period of time.