Modification of Child Support
Once child support is established, the terms are normally placed in an agreement which is then used to facilitate your divorce. This separation agreement which is normally incorporated but not merged into a judgment of divorce is a contractual obligation on the parties. Thus, when entering into such an agreement, you must make sure that the terms are something that you can live with. It is assumed, upon execution of this separation agreement that you have anticipated and have adequately provided for the child’s welfare. If you later on decide that you want to change the terms of the agreement, the Courts will first look to the agreement and will only deviate from the terms of the agreement if the needs of the child are not being met.
Generally speaking, child support will not be changed unless there has been an unforeseen change in circumstances and a concomitant showing of need. What qualifies as an unforeseen change in circumstance? That will be decided on a case by case basis. The one change in circumstance which never works is when the paying spouse intentionally quits their job and then runs into Court claiming that they can no longer afford to pay child support. If you have a child support obligation and you purposefully or intentionally quit your job, you will still be liable for child support at the amount in which you agreed in your divorce.
What if you lose your job due to no fault of you own. That’s where the facts and circumstances of your matter come into play. Lets suppose you lose your job because the factory you were working at closed down. Clearly, not foreseen nor anticipated. You are not allowed to sit home and not work. You are not allowed to claim you cannot pay for child support because you lost your job. It is incumbent on you to find another job. Of course you can petition the Court to modify your child support, but you have to show the Court that you are actively searching for a job. We advise our clients to immediately start looking for a job. Go on interviews, attend job fairs do anything that can show that you are actively looking for work. If you can show the Court that due to no fault of your own, you have lost your job but you are doing everything you can to obtain new employment, you maybe be able to get a modification of child support.
What if after your search, you immediately find a new job but it is substantially less than what you were making? Again, it depends on the facts of your case. If you were a doctor, and you took a job as a waiter, the Court will not look kindly to that as you are under employed. What if you were a waiter, and you obtained a job as a waiter in another restaurant. Depends. Were you a waiter and Ruth’s Chris and now you are at a local diner? Maybe you’re underemployed, maybe you’re not. Did you take this job pending other interviews? Again, it all depends on your facts and circumstances and what you are doing to obtain employment.
If you are the one receiving child support and your spouse has stopped paying, you want to look into why. If your spouse intentionally quit their job, then move for contempt. The best interests of your child dictates that your spouse should not be allowed to quit a job to avoid child support. What if the loss of employment was clearly not your spouse’s fault? The best thing would probably agree to a temporary reduction in child support, pending new employment. If there is a legitimate change in circumstance, you cannot get money from a source that doesn’t exist. A temporary adjustment will give your spouse time to get a new job and shows that you are reasonable to the Court should you go that far. Second, if you have to go to court, while you have tools to compel enforcement of child support orders, if there is a legitimate change in circumstance, how will spending time in family court help you get child support? It won’t. Thus, you have to know the reasons for the lack of support. If there are valid reasons, we recommend working with your ex-spouse. If there are no valid reasons, then Court may be your only solution.
If you need to modify your child support, or if you are being asked to modify child support obligations, contact us immediately so we can prepare the best case possible based on your unique set of circumstances.