Find out how to request a modification of the amount of child support you are paying or receiving – and how a judge determines if a modification should be granted.
Doesn’t matter if you’re paying child support or receiving support for one or more children who live with you, you might feel that what’s being paid now should be different, for any of a number of reasons. Each State have specific rules about changing child support orders, just like everything else in child support.
You don’t necessarily have to hire an attorney and fight it out in court to alter a standing support order. But you need to know how to request a child support modification and how to explain the need for it – or, on the flip side, how to oppose a modification request.
Acceptable Justifications for Modifying Child Support
If you already have a child support order, you may know a little about what role your state’s child support guidelines play.
Even if you and the other parent have agreed on an amount that one of you would pay, a judge wouldn’t have confirmed the agreement and entered a formal order unless the amount reflected what the calculation would have been under the guideline formula – or there were valid, legally acceptable reasons to depart from the guideline.
When a judge decides on a modified amount of child support, he or she will follow the guidelines, just as with initial support orders.
But first, you’ll have to meet the threshold requirements for the judge to even consider a modification request. The specifics of those requirements differ from state to state, but the broad outlines are similar.
The Changed Circumstances Requirement for Child Support Modifications
When you’re asking for a change to child support, you generally have to demonstrate that there has been a change in circumstances that has occurred since the current order came out, and that the change is
(1) not foreseeable at the time of the last support order,
(2) it’s not a temporary change, and
(3) material – meaning that it would involve a 10% or 20% change in the amount of support under the guidelines as they currently stand.
There are usually exceptions to this changed-circumstances requirement when you’re seeking a periodic review of your child support order through a state agency (more on that below).
And depending on where you live, you may not be able to request a modification until a certain period has passed since the current order was entered, no matter how much your circumstances have changed.
Common Reasons for a Change in Child Support
There are numerous developments in a parent’s life that might satisfy the changed-circumstances requirement, but here are some common scenarios:
- Loss of income involuntarily. Because the states’ child support formulas are largely determined by parents’ income levels, some of the most common reasons parents seek to have their payments lowered are when they’ve been laid off from jobs, had their work hours reduced or were no longer able to work because of disability, long-term illness or incarceration.
- Increased income. Conversely, you could make a case in court that the income of your child’s other parent has increased, and you deserve more in child support now. Increased income alone, however, may not be sufficient to justify a child support modification, depending on the rules in your state. You may also have to prove that the existing child support order is inadequate to meet your child’s needs. Some states also put a cap on the amount of income increase (or decrease) that can trigger a modification based on the change – say, a 20 percent difference.
- Modification of time with children. In many states, the amount of time both parents get to spend with their children, called shared physical custody, is taken into account in child support guidelines. But parenting plans aren’t always set in stone and can change, especially as children get older or when one parent relocates. If the adjustment would change how much a parent would pay in child support using the state’s formula that might justify a change.
- The support per child is greater (or smaller). Most child support formulas make some adjustments if a parent is also supporting children of another relationship. So if a parent has a child with a new partner, it can leave less money available to support the children covered by the existing order. Likewise, a recipient of support might seek an increase in child support because the other parent’s obligation to support adult children from another relationship is coming to an end.
- Shift in the needs of children. Similar guidelines for child support also typically take into account a child’s special educational, medical, or other extraordinary needs. So any material and permanent change to those needs could trigger a modification of support.
As for a parent remarrying, that, by itself, is not generally enough to change the amount of child support. That’s because most states do not factor in the income of a new spouse when determining child support. But parents’ living expenses may be lower once they marry again or combine households with a partner – and that can impact how much of their own income is left for child support.
Can Inflation Affect Your Child Support Payment?
States vary on how to deal with this – some provide for automatic cost-of-living adjustments (COLA) in child support orders every couple years or so. In other states, such as Florida, you may petition for a modification if the cost of living has risen substantially.
But that doesn’t automatically mean your request will be granted by a judge, especially if the paying parent hasn’t received a bump in salary (more on winning or battling modification requests below).
When to Request a Child Support Modification
In general, judges cannot make child support amounts be retroactive. That means whatever changes are made won’t take effect any earlier than when a parent filed the formal modification request.
That means you need to act fast when you want to vary the level of support you’re paying or receiving, because your situation has changed.
With the caveat that the past due amount (called “arrearages”) will continue to be owed if the judge has lowered their current support obligation in a amended order, even in the face of a prohibition against retroactive changes.
How to Request a Modification of Child Support
Essentially there are three methods that you can request a modification of child support: by agreement, by asking an agency to review your support and by actually filing a request with the court.
Modification Agreements
You and the other parents are always welcome to agree on a modification of child support. But you will have to file your agreement for a judge’s approval so that it can become a part of an official court order. Otherwise you might get in serious trouble.” For instance:
If you are the paying parent, you still are required by law to pay the amount in the current order – your agreeing to pay less would not render the order unenforceable against you. That means you may be subject to child support enforcement measures for that difference. And if you’re making support payments through an income withholding order (wage garnishment), your employer will typically not change the amount deducted from your paycheck without a court order.
If the paying parent informally agreed to a higher amount but the amount went unpaid, the recipient wouldn’t have any ability to enforce that agreement.”
Even when you file your modification agreement, the judge doesn’t just sign the change. Unfortunately, the judge cannot simply sign off on any new agreement to pay the support amount as the former partner has requested; he must ensure that the new amount means the child will be cared for according to the state guidelines.
Filing for a Review of Your Child Support Order
All states have agencies that assist parents in collecting child support.
Federal law also requires those child support enforcement agencies to have a process for reviewing existing child support orders to determine whether they should be adjusted based on parents’ current finances and other circumstances.
You will have to ask for this review unless the agency is already involved with your child support case – say, because the family is receiving public assistance, or the recipient has asked the agency for help setting up a child support order (apart from the divorce) or collecting court-ordered support.
By default, parents can request an agency review every three years of their child support order. But you may be entitled to a review before then, if you have experienced a significant change in circumstances since then.
If you are not receiving services from the agency, you’ll need to apply for those services before you can ask for a review of your support order. Information and contacts for local agencies are available in this state-by-state guide to modifying child support from the federal Office of Child Support Enforcement. Once you land on the local child support agency’s website, you can typically find an FAQ and a link to apply for services.
Each parent will have to present current financial information and documents for the agency’s inspection. When the review leads to a recommendation to amend an existing child support order, the agency often pursues the modification request directly with the court. Both mothers will have the opportunity to object to the recommendation and the request, however.
Court Proceedings to Modify Child Support
A motion (a formal request in court) may be filed to modify child support by either parent. In general, you will file your modification motion in the same court that issued your current child support order. But if the custodial parent and child have relocated out of state since then, you need to talk to a lawyer to determine how best to move forward.
As part of your motion to modify, you must show why you believe there has been a qualifying change in circumstances since the date of the support order you seek to change. Again, both parents will need to provide financial affidavits and corroborating information regarding their current income, assets, debts and other expenses.
The court will set a hearing on the modification request. The hearing date will be set by both parents, and they will have the right to show up and explain why such a change should be made (more on this below). The judge will review all of the evidence, which includes the parents’ testimony, before issuing a decision. Either parent can appeal that decision within a certain timeframe.
The judge’s decision is provided to both parents, and either parent can appeal within a prescribed time frame.
