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Do Not Take it Upon Yourself to Modify Child Support Payments

By: Attorney Nicole J. Huckerby
Many people do not realize that a change in circumstances may warrant a reduction in the amount of child support you pay. Do not take it upon yourself to reduce the payments. You must agree with your spouse or ex-spouse as to the reduction and sign what is known as a Consent Order or you must go to Court. Don't do what Jack and Keith did!

Jack and Diane Daly are in the process of getting divorced. Throughout their fifteen-year marriage, Jack was the primary breadwinner, while Diane raised their three children, ages 12, 8 and 5. When their youngest child began school, Diane went to work as a teacher's aide, part-time.

Presently, the parties have been separated for eight months and the three children reside with Diane. Jack refused to pay a reasonable amount of child support, so shortly after the separation, Diane went to Court and the Court awarded her child support. Based upon Jack's weekly net income of $510.00 and Diane's weekly net income of $160.00, the Court determined that Jack was obligated to pay $215.00 per week for the support of his three children.

Several months after the Order was entered, Jack lost his job and became re-employed at a lesser salary. Rather than follow the proper procedure, Jack began to pay only $150.00 per week for child support rather than the Court ordered $215.00. Arrears of $65.00 per week began to accrue against him and his wife went to Court to enforce the prior child support order and for payment of arrears.

Keith and Kim Williams were divorced in 1991. The Judgment of Divorce ordered Keith to pay $150.00 per week in child support for their one child, Philip. Keith paid the $150.00 per week until January, 1993 when the parties reconciled.

At that time, Keith and Kim began living together and Keith paid many of the household expenses but did not pay child support of $150.00 per week. Keith continued to maintain his own apartment which was closer to his office. During this period of reconciliation, Keith stayed at his own apartment one or two nights per week when he worked late.

After eight months of living together, Keith and Kim separated and Kim went to Court for non-payment of support. She alleged that Keith had not paid child support for the past eight months and was in arrears $5,100.00. Keith responded that the parties had reconciled, were living together, and he had paid many of the household expenses in lieu of the child support. Kim denied the reconciliation and the Court ordered a hearing. Keith was forced to defend his position in Court, at a cost which could have been avoided had he followed the proper procedure.

As soon as their living and/or financial situation changed, both Jack and Keith should have filed an application with the Court, known as a motion, to modify the prior Court ordered support obligations. The Court will consider such an application if there is a showing of changed circumstances. The change in circumstances must be material or substantial.

It is within the discretion of the judge to determine what decrease in income is sufficient to warrant a modification. In addition, if the change in circumstance is temporary in nature or merely an expected change, the Court will generally refuse a request to modify the existing order.

As a general rule, the judge will use the Child Support Guidelines to determine if a modification is warranted. Where these guidelines are inapplicable, the Court instead will evaluate the particular facts presented to him or her.

In determining whether there is a material or substantial change in circumstances, the Court will want a document known as a Case Information Statement. The statement outlines your financial circumstances, both income and expenses. If you are asserting a decrease in income, you must attach your previous Case Information Statement from the time the original Order as to child support was entered. The Court can then compare that Case Information Statement with your present Case Information Statement and decide whether circumstances have changed.

So, immediately upon receiving a lesser income, Jack should have filed a motion to modify child support. Likewise, Keith should have sought Kim's consent to terminate/modify his support obligation. By failing to follow the proper procedure, Jack and Keith will likely be held responsible to pay the arrearages - that is the difference between what they actually paid and what the Court Order directed them to pay. As a general rule, the Court will not relieve you of these arrearages, even if there is a material or substantial change in circumstances, until the Court approves the reduction or you obtain the consent of your spouse or ex-spouse to the reduction.

So, do not assume that because you become unemployed, or have a reduction in income that you have the right to terminate or modify your child support obligation. You do not. This must be accomplished by consent or by going back to Court.
 

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