Modification of Child Support Orders

The dissolution process can be exhausting, especially in highly contentious matters, where the parties are in and out of the Court system. Unfortunately, even obtaining a “final” judgment in a family law matter, does not necessarily bring the couple’s case to an end. Often times, Orders may be modified post-judgment, thus times forcing the parties back into their attorney’s offices, or even to Court.

Courts are exceedingly concerned with the welfare of minor children. Courts simply do not want minor children to become wards of the State, thus they are intent on requiring the minor child’s parents to provide support for the child, when capable. For this reason, child support orders are modifiable at any time the court deems necessary, pursuant to Family Code §3651(a). Therefore, a domestic relations judgment can never be considered a “final” adjudication of the extent of the parents’ obligation to support their minor children. Marriage of Armato (2001) 88CA4th 1030, 1042, 106CR2d 395, 405.

What Does the Court Consider When Ordering a Modification of Child Support?

The general rule is the Court will not modify a child support order without a “material change of circumstances.” That is, unless the parties stipulated (agreed) to a child support order below the statutory guideline amount. In this one instance, a material change of circumstances need not be shown in order to obtain a modification in the support amount. The same is not true where the order stipulated to was above the guideline amount.

What constitutes a material change of circumstances? This is not an easy question to answer, as there is no easy guideline as to whether the either parent’s circumstances have changed sufficiently to warrant a modification of the child support order. The Court views each matter, on a case-by-case basis, and often will make a determination based on the parties needs and/or ability to pay.

Ability to Pay

A change in one party’s ability to pay is not necessarily automatic grounds for a modification in support. The Court must examine both parties’ circumstances as a whole, at the time of the request for modification. Sometimes, there are extreme cases whereby the noncustodial parent’s income has increased tremendously, thus authorizing the Court to allow for modification. In these circumstances, the Court will grant a modification in support because it is viewed from the child’s perspective.

Under Family Code 4053(a)(f) &(g), the minor child has a right to share in both of its parents’ standard of living. For example, if one parent has a modest middle class standard of living, but the other noncustodial parent has a standard of living similar to that of Tiger Woods, the minor child is entitled to share in the higher standard of living.

However, in most cases, where one party’s ability to pay has increased, but the other party’s need for additional child support has not changed significantly, the Court may not authorize a modification.

The cases where the Court will typically grant a modification is where one party’s ability to pay has increased, and the other party has a substantial need for a modification in support. The Court may also grant modification where a party’s need for support has decreased.

Financial Hardship – “I can’t afford to pay the Court Ordered support!”

The Court may modify child support where a parent is suffering “extreme financial hardship,” thus making it difficult for them to pay the previously ordered child support amount. Extreme financial hardship may be brought on in cases where the party has suffered extraordinary health expenses, uninsured catastrophic losses, or even the birth or adoption of new children from another marriage or relationship. Again, the Court will look to the individual facts of each case to determine whether the party is truly experiencing an “extreme financial hardship.”

Military Service or Deployment

Being located in San Diego, we regularly deal with clients who are in the military or who must deal with periods of deployment. Often times, military activation or out-of-state/country deployment may trigger a change of income to military personnel. The Court may view this change in income for purposes of modification, either increased or decreased, of child support.

Earning Capacity

A parent’s actual earnings are not necessarily the only thing the Court will consider regarding a party’s ability to pay. Pursuant to Family Code 4058(b), the Court may in its discretion, consider the earning capacity of a parent in lieu of the parents’ income, consistent with the best interest of the child. This means a Court may choose to impute income to a party, based on their ability to earn, and not what they actually earn.

This is especially important in cases where it is obvious one party is deliberately skirting their financial responsibilities. For example, where a party has the ability to earn substantial income, but purposely takes a lower earning job position, they will not be relieved of their duty to pay child support, and a Court may impute their hiring earning potential as their income.

These are only a few circumstances where a Court may find there has been a material change of circumstances such that a modification of your child support order could be granted. If you have questions regarding your current child support order, think you may be qualified to obtain a modification of a child support order, or have any general questions related to child support, please contact Cage & Miles, LLP.

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