For divorces involving children, a child support order will be part of the final paperwork signed by a judge. In most circumstances, this order requires the non-custodial parent to pay a monthly sum to the parent with whom the children live most of the time. Unless the children are near the age of majority when the divorce takes place, circumstances may eventually change making the original support amount insufficient or impractical.
Most states allow parents to ask a court to change the support amount if there is a substantial change in circumstances. Some state laws also allow for periodic review of support amounts without showing changed circumstances. New Jersey allows either parent to request a review every three years without a showing of changed circumstances. Washington requires a 24-month period before such a review.
Change of Circumstances
Child support is typically based on incomes of the parents. A legitimate change in parental circumstances includes job loss or change, extended illness, incarceration, remarriage and retirement. For example, if the paying parent loses a job paying $4,000 and takes a job paying $2,600, this constitutes a legitimate change in circumstances. Similarly, if that parent is promoted to a job paying $6,000, that also is a substantial change.
Support payments in many states may be modified temporarily to accommodate a job loss, injury or illness. However, some states may require the change in circumstances to at least appear to be permanent. A person seeking to modify support in New Jersey must prove the changed circumstances are substantial, unforeseen and permanent.
A substantial change in circumstances exists if the paying parent has another child to whom a duty of support is owed. A significant change in the amount of time a child resides with the paying parent may also suffice. In some states, age by itself is a changed circumstance. Washington’s guidelines increase support for children once they become 12 years old, but a parent must get court approval to obtain the higher amount.
Either parent can request a court review. When the situation involves the paying parent losing a job or taking a job with lower pay, that parent has the incentive to reduce monthly payments. If that parent is promoted to a higher paying job, the parent receiving support will usually be the one seeking to modify support so the child can benefit from increased parental wealth.
Alternatives to Court
Several alternatives can minimize the stress and cost of going to court. Parents can simply agree to change the support amount. For example, if the paying parent is injured or becomes ill requiring an extended period away from work, the receiving parent could agree to accept a lower amount of support during that period with a provision to review the situation in six months. An agreed order would be presented to a judge. Approval of agreed orders is usually granted if they appear reasonable.
Parents can also set support using mediation. Both parents would present financial information to a mutually agreed upon mediator. A mediator cannot decide an issue but can suggest resolutions and offer advice to help the parties resolve the issue. Ultimately, the parents must agree or take the issue to court. Mediation has the benefit of being private compared to a hearing in court where accusations and personal information are shared in public. Mediation is also generally less costly and less stressful compared to litigation in court.
Going to Court
If parents cannot reach agreement, the parent seeking to change the support amount must file a petition or motion in court to modify support. A parent seeking to modify support should also take the following actions when appropriate.
- Act quickly. Some states, such as New Jersey, may allow a reduction to be retroactive to the date a motion to modify was filed. In most states, a reduced support amount will only apply to payments due after a judge signs a new order. A parent experiencing a sudden loss of income should act to modify support without delay since support will continue to be owed at the higher income level, creating a debt on which interest will be imposed. Back child support debts cannot be discharged by bankruptcy.
- Document the change in circumstances. A parent experiencing a medical disability or who has lost a job or retired should be prepared to provide relevant paperwork to the court. Employment documents should show job loss was due to layoff and was not voluntary. The parent should also document specific efforts made to obtain new employment at a comparable pay rate. Any appearance that a parent quit a job or retired early in order to reduce support payments will likely be viewed negatively by a judge and result in support being maintained at the current level.
Similarly, for parents seeking to increase support, documentation showing unexpected medical needs by a child or increased income by the other parent should be provided. Some courts may allow a parent seeking an increase to file without full financial documentation of the other parent since access to the other parent’s employment records may be limited. A court could then require both parties to provide current financial information.
- Continue to pay support. Persons owing support but seeking to lower the amount should continue to pay as much as possible given their circumstances. Courts will often have a favorable view of a parent who makes a substantial effort to meet support obligations even if the full amount cannot be paid. A parent who experiences reduced income but stops paying any support may be viewed harshly by a judge.
Support modification laws vary by state. Whether seeking higher or lower support payments, consultation with an experienced family law attorney is advised. If you have a New Jersey child support issue, call the Law Offices of Peter Van Aulen at (201) 845-7400 for a free consultation.