Child Support Law
How to Modify a Child Support Order
When parents get a divorce or legal separation, they have to find a way to divide custody, visitation, and child support. The child support order is based on the parents’ financial situation, the child’s living arrangements, and the child’s needs. Over time, the situation may change, but the child support payments remain the same until a court says otherwise. If a parent wants to change the child support requirements, they will have to petition the court to modify the child support order.
Child support modification laws will depend on where you live and your individual situation. To get the best legal advice, it is best to consult a top child support lawyer in your particular state.
Child support payments are generally made by the noncustodial parent. Even if the parents no longer live together, they are both legally and financially responsible for the care and needs of the child. Each state calculates child support based on state child support guidelines. Factors in calculating child support may include:
- Each parent’s net income
- Educational expenses
- Health insurance costs
- Child care expenses
- Special needs of the child
- Additional children
- Other payments of child support
Once the court issues a child support award, the noncustodial parent is responsible for making on-time payments. These payments are usually paid to the state child support agency or county child support offices every month. If the parent is late or does not make the full payment, child support enforcement actions may be taken by child support services to collect a payment, including paycheck withholding.
In general, child support payments will not change unless a parent petitions the court to modify the award. Modification of child support orders generally requires a “substantial change in circumstances.” A substantial change in family circumstances that could justify a child support modification may include:
- Modification of a child custody or visitation order
- Substantial change in financial circumstances by the parent paying child support
- Material change in income by the parent receiving the child support payments
- Increased financial need for the child because of a health care condition, educational expenses, or other special needs
- One parent has been incarcerated
The most common reason for modifying a child support order is a change in financial situation. If the noncustodial parent’s income increases, the custodial parent may want to modify the award to account for the increased income. If the noncustodial parent is laid off and has no income source, they could seek to modify the order to reflect their financial situation.
Some states may require some minimum percentage of change in finances to modify an award. In Florida, the court may find a substantial change in circumstances if the difference between the existing monthly child support obligation and the amount provided is at least 15% or $50. In Texas, child support orders are eligible for modification after more than 3 years, or if the difference would be at least $100 or 20% per month in child support.
A small change in income may not be enough to modify a support order. Getting a new job with a slightly reduced salary or being laid off with a large severance package may not be enough to justify a reduction in support.
If a parent is laid off and has trouble finding a job with a similar salary, they can petition the court to reduce their child support obligations based on the loss of income. However, the court may still require a minimum payment every month, even if the parent is unemployed or underemployed. Talk to your family law lawyer about your options for a modification request.
Bankruptcy may qualify as a substantial change in circumstances, but unpaid child support obligations cannot be discharged through bankruptcy. If you are behind on child support payments when filing for bankruptcy, those debts will not be erased. Bankruptcy does not relieve you of current child support obligations. In addition, modified child support orders are not retroactive and will only affect future payment obligations.
A change in the child custody arrangement or visitation schedule may also justify a modification to child support payments. For example, suppose a divorce agreement provided for parenting time of 80/20, with the child living with the custodial parent 80% of the time and visiting the noncustodial parent 20% of the time. In that case, the court may have provided for a greater portion of the noncustodial parent’s income to contribute to the costs of raising the child.
However, after a few years, the custodial parent got a new job requiring them to travel. The new parenting time arrangement ended with the child spending the majority of time with the noncustodial parent and seeing the custodial parent on weekends and holidays. In this situation, the noncustodial parent may seek to modify the prior custody agreement and the child support order. When custody changes, the judge could change which parent is required to make child support payments to the other.
Child support orders can also be modified based on the needs of the minor child. For example, if the child suffers a disabling accident or is diagnosed with a serious medical condition, the child may have additional medical expenses and require specialized child care costs. Both parents are expected to provide for any changing needs of the child.
The modification process will depend on your state. Before you file a family court petition to modify child custody orders, gather any documentation showing a change in financial status. Supporting evidence may include:
- W-2 or income tax records showing a change in income
- Tuition or education-related invoices for the child
- Medical insurance records
- Letter of termination or unemployment records
In most jurisdictions, you will need to petition the courts for a change. The court may require a child support hearing in person before the family court judge to hear from both parties. The judge will ultimately decide the case based on what is in the best interests of the child. Ask an experienced family law attorney about how to get your monthly child support payments modified.