In any case involving the custody of a child, the Court will address the issue of child support and will likely issue an order for payment of child support. Normally, the non-custodial parent is ordered to pay child support, but there are circumstances in which the custodial parent may pay support or neither parent is ordered to pay support. While a child support order should be accurate at the time it is ordered, changes in income or changes in a parent’s circumstance may make the child support obligation insufficient.
A parent wishing to modify child support must file a petition to modify with the Court. Both the parent paying child support and the parenting receiving child support may file to modify child support. A Petition to Modify Child Support may be filed to increase or decrease child support from the ordered amount. A parent who is ordered to pay child support should always get a court Order modifying child support before changing the amounts paid. Even if the parent receiving child support is in agreement to reduce support, the paying parent should get a court order modifying support or they may remain liable for paying the ordered amount of support and could be found to have an arrearage by the Court.
A parent wishing to modify support has two standards under which they can modify support. The first is if there has been a change in circumstance so substantial and continuing so as to make the terms of the child support order unreasonable. The second is if it has been one year since child support was ordered and the modified child support is more than twenty percent (20%) different pursuant to the child support worksheet, than the court ordered support. The parent seeking modification must prove one of those two things has occurred in order to obtain a child support modification.
A parent should file to modify child support as soon as they believe a modification should occur because child support is normally modified only back to the date of filing. A court may only retroactively modify a child support prior to the date of filing in two circumstances: (1) when the parties have agreed to and carried out an alternative method of payment which substantially complies with the spirit of the decree; or (2) the obligated parent takes the child into the obligated parent’s home and assumes custody, provides necessities, and exercises parental control for a period of time that a permanent change of custody is exercised. Any overpayment made prior to filing to modify child support is typically seen as a gift by the Court and will not be paid back to the paying parent.
If you have questions about modifying child support or think you might be entitled to a child support modification, speak to the experienced attorneys at Slotegraaf Niehoff, P.C.
