Child Support Modifications: What You Need to Know
However thorough your initial settlement agreement and accompanying order establishing an initial child support obligation for your child(ren) may be, the need for a modification to your original child support amount before your children reach adulthood is always a possibility.
Where child support has been established by court order after a divorce or custody action, the only way to change that order is to obtain a new order modifying the child support set forth in the prior order. So, how do you obtain a court order modifying an existing child support obligation, and what circumstances warrant a modification of an existing child support obligation?
Below are answers to some of the questions most commonly presented to me regarding child support modifications.
If my ex and I have agreed that he/she will pay more child support (or that my child support obligation will be reduced), do I really have to file a modification action and get a court order? What if we have a written agreement signed by both of us – isn’t that enforceable?
You MUST file a modification action in order to modify an existing child support obligation, no matter what. In fact, until a court enters an order modifying child support, the non-custodial parent (or parent responsible for paying child support) will only be required to pay the amount of child support set forth in the most recent court order. This is true regardless of whether both parties have signed a written agreement to the contrary. Without a modification order, such a written agreement is unenforceable. (Also, remember that interest will accrue on any child support amounts owed pursuant to a court order which go unpaid. In other words, if you and your ex agree to a reduction or elimination of your child support obligation, without a court order you will not only remain liable for the full child support amount in the most recent court order, but also statutory interest on the child support which goes unpaid. Notably, there is no statute of limitations which applies to the collection of past due child support, so unpaid child support and interest may haunt you forever if ignored.)
I believe that my child support obligation should be decreased – or that my ex’s child support obligation should be increased. If I bring a modification action, what factors will the court consider in determining whether a modification of child support is warranted?
In all child support modification actions – both actions for upward modification and actions for downward modification – the moving parent must prove either that there has been a substantial change in one parent’s income and financial status or that the child’s financial needs have changed since the entry of the original child support order.
How often can I ask the court to modify child support?
After an original child support order is entered, you can file a child support modification at any time, provided you can demonstrate a substantial change in the financial status or income of either parent or in the financial needs of the child.
Once you file a modification action after the entry of the original order, however, you must wait at least Two (2) years to file for modification again, unless one of the following exceptions apply:
* The parent requesting a modification has experienced an involuntary loss of income as that term is defined in O.C.G.A. § 19-6-15(j);
* The non-custodial parent has failed to exercise court-ordered visitation; or
* The non-custodial parent is exercising more visitation than the court-ordered amount.
So, for example, if a court entered a final order in your divorce case establishing a child support obligation for you or your ex on March 15, 2019, you may file an action seeking to modify the child support amount in that order at any time (provided the above criteria are satisfied). However, if you file a modification action in June of 2019, and the judge enters an order in the modification action on September 23, 2019, you must wait until at least September 23, 2021 to file another child support modification action, unless one of the above exceptions applies to your case.
I lost my job and I cannot afford to pay the child support required by an existing court order – will the court give me a break?
If you lose your job, you probably have an immediate right to file a petition to modify child support – no matter how much time has passed since the entry of the existing child support order, involuntary loss of income is one of the exceptions which permits you to file a modification action even if less than 2 years have passed since the entry of an order in a prior modification action.
In order to qualify for the exception for involuntary loss of income, however, you must meet certain criteria specified in O.C.G.A. § 19-6-15(j). First, you must have suffered an involuntary termination of employment, an extended involuntary loss of average weekly work hours, be involved in an organized strike, incur a loss of health, or similar involuntary adversity. If you simply quit your job without good cause, you cannot invoke the exception for involuntary loss of income. Second, you must experience a loss of income of 25% or more. So, if you have multiple jobs, and you lose one of them, but that job represents less than 25% of your total income, you may not file for a modification of child support based on involuntary loss of income.
In cases involving modifications of child support based on involuntary loss of income, the timing of the filing of the modification petition is quite important. This is because the portion of a parent’s child support obligation which is attributable to lost income will not accrue from the date of service of the petition for modification on the other parent. In other words, while child support will not be modified retroactively from the date of service of a modification petition in most cases, it will be modified retroactively to the date of service of a modification petition when there has been an involuntary loss of income.
I heard through the grapevine that my ex got a big promotion and raise at work. Can I go back to court and get more child support?
First of all, before rushing to the courthouse, you should think carefully about how reliable the information you have received actually is. Remember that any raise or promotion will not warrant an upward modification of child support – only a “substantial change” in the income or financial status of either parent … and you do not want to file a modification action, incur attorneys’ fees, and waste the court’s time only to determine months later that your tip about your ex’s promotion was unreliable.
So, the key question here is whether the change has been substantial. While the involuntary loss of income statute provides for a threshold of a 25% reduction in income, there is no companion threshold in upward modification cases – nonetheless, the 25% threshold may be a good guidepost when deciding whether the change in your ex’s financial status is sufficiently substantial.
I’ve got a girlfriend and we want to get married, but I’m worried that my ex might be able to seek an increase in child support based on my new wife’s income? Is that a possibility?
Unfortunately, there’s no black and white answer in this scenario – it depends. Again, in all child support modification actions, the parent seeking to modify child support must establish that there has been a substantial change in the income and financial status of the other parent (or in the financial needs of the child). So, if your marriage to your girlfriend causes a substantial improvement in your income, there’s a chance that your ex can get a modification of child support on that ground.
However, what if your new wife has her own children, and you now have an obligation to support them? What if you and your new wife have a child together? Or, what if your new wife’s income is not enough to cover her share of the household bills or cause a material reduction in your bills? In that case, your new wife’s income might not be enough to warrant an increase in your child support obligation – in fact, it’s possible that, under certain circumstances, your subsequent marriage might result in a substantial change in circumstances warranting a reduction in your current child support. Ultimately, this is a fact-intensive inquiry, and the answer depends entirely on the unique facts of your situation. (Tip: this is exactly the sort of situation that warrants a consultation with an attorney – even if you’re comfortable pursuing or defending a child support modification without the assistance of counsel (which usually is not a good idea, by the way), a consultation with an attorney to get an opinion as to whether your marriage to a current girlfriend or boyfriend warrants an upward or downward modification of child support would be a very wise investment given the case-by-case nature of the analysis.)
My kid just came to live with me, but he/she lived with my ex at the time the last child support order was entered – I can stop paying child support now, right?
Nope. Again, your child support obligation pursuant to an existing court order continues until that order is modified by a subsequent order no matter what. However, this is a case where it is highly likely that the court will terminate your child support obligation once you file a modification action. Because, in this case, you are likely in a situation where you’re exercising more visitation than what is required under your current court order, you’re entitled to file a modification action at any time, regardless of whether Two (2) years have passed since the entry of an order modifying child support.
My kid just graduated from high school – I can stop paying child support automatically, right?
Not necessarily. First of all, check the language of your current order – it probably contains language which clearly specifies when your child support payments terminate. If, however, you have more than one child, and your current order does not contain language indicating the amount by which your child support payments are to reduce when your oldest child graduates high school, you will need to go to court and obtain an order modifying your current child support obligation when your oldest child ages out. (Of course, in cases like this, the court is almost certain to grant your request for a modification.)
Remember that you can probably avoid the need to return to court for a child support modification under these circumstances by addressing the certainty of your child(ren) reaching adulthood at the time of your divorce (or the entry of the initial child support order) by calculating the appropriate payments to be made for the remaining child(ren) when support is no longer required for the oldest.
I want to file a modification action, but I think my ex should be required to pay my attorney’s fees. Will I be awarded those if I prevail in the modification case?
Not necessarily – you definitely shouldn’t count on it.
While the court may award attorney’s fees, expenses, and costs to the prevailing party in an action for modification of child support, the decision as to whether such an award is appropriate falls to the discretion of the court in most cases. There is, however, one exception: in cases where a custodial parent seeks an increase in child support based on the non-custodial parent’s failure to exercise the minimum court-ordered visitation, and the custodial parent prevails, the applicable statute says that the court “shall” award fees to the custodial parent.
In all other cases – where the question of whether to award fees is left to the discretion of the court – there’s no way to predict what the court will do. Further, in my professional experience, courts are generally reluctant to require one party to pay the attorney’s fees of the other except in cases where such an award is clearly warranted (whether due to great disparity in the financial situations of the parties or due to the conduct of either party during the litigation).
If I win my modification action, will the increase/decrease be retroactive to the date I filed the case, or do I have to wait until the court enters an order for it to go into effect?
In most child support modification cases, the increase or decrease will not be retroactive to the date of filing – instead, the modification will take effect on the date the modification order is entered (or on the date the modification order specifies the increased/decreased child support takes effect). The only exception to this rule applies in cases where a decrease is being sought based on an involuntary loss of income. In involuntary loss of income cases, the portion of child support which is attributable to the lost income will stop accruing on the date that the non-paying parent is served with the petition for modification (not on the date on which the case is filed).
Still have questions about child support modifications? Contact Kimberly Coleman Law today for a consultation – when considering an increase or decrease in child support (or when faced with a demand for an increase or decrease in child support from your ex), investing in a consultation with an experienced lawyer for purposes of finding out how your unique situation is likely to affect the outcome is always a good idea.