Modification of Support

So long as a child is a minor (under age 18), the court has jurisdiction to modify prior orders—to include child support.

As a general rule, in order to obtain a modification of child support, there must be a showing to the court of a “material change of circumstances” since the most recent order. Put another way, the court will almost always deny a request for modification based on a minor change.

Material changes in circumstances include but are not limited to the following:

• Significantly increased income of one of the parties, e.g. job promotion
• Additional income, e.g. annual bonuses
• Lost income
• Reduced income
• Changes in the visitation schedule affecting support

A child support order normally terminates on the first of the following events—regardless of what an order expressly states:

• The child attains age 18, unless the supported child is a full-time high school student who is not self-supporting—in which case support terminates when the child graduates, or attains age 19, whichever occurs first. (Family Code sections 4001, 6500, 3901(a));
• The child dies;
• The child becomes emancipated, e.g. enters into a valid marriage, is on active duty with the armed forces, or receives a declaration of emancipation under the Act (Family Code sections 7002, 7050(a)).

**If the child is a minor and emancipated, it is strongly encouraged that the payor file a motion to terminate child support in order to ensure no arrears and interest will accrue.

The party wishing to modify support would need to file a motion with the court to modify child support. Warning: many parties erroneous believe that if they personally agree to modify the order amongst themselves or terminate the order amongst themselves, then the modification is valid and enforceable. Big mistake! Be forewarned: modifications must be approved by the court.

Illustration: When Harry and Sally’s baby is one year old, mother goes to court and the court awards child support of $750/month. For about 2 years, Harry pays the $750/month. One day, Harry and Sally talk and agree that Harry no longer has to pay any child support—so long as he stops coming to the home to visit with the child. Father happily agrees. Ten years later, Sally learns that the informal modification of 10 years ago was not enforceable. So, Sally decides to contact her local Department of Child Support Services office in order to collect the accrued arrears which, 10 years later, total approximately $130,000—to include accrued legal interest of 10%. Harry calls a local family-law attorney to discuss his legal rights. It is during the consultation that he learns he owes the money. Lesson here: don’t let this happen to you. Unless the modification is issued by the court, it is not enforceable.

The only time a party can seek a modification of spousal support if there is a judgment or MSA that reflects that the court has continued jurisdiction to modify spousal support.

Most marital settlement agreements (“MSA”) reflect that the parties agree to terminate the court’s jurisdiction to award or modify spousal support. Before hiring an attorney to modify spousal support, it is recommended that the party seeking the modification locate the MSA and read the section in the MSA referring to spousal support—to determine whether or not the court has continued jurisdiction to modify spousal support.

If the MSA reflects that the court’s jurisdiction is terminated, this means that the party’s ability to seek a modification is terminated. In certain cases, the court will consider an otherwise non-modifiable spousal support order if it finds that the terms of the MSA were unjust or unconscionable.

If the MSA or Judgment reflects that the court retains jurisdiction to modify spousal support, then the moving party must, absent an agreement to the contrary, show a “material change of circumstance” since the order was made. Besides a showing of a material change of circumstances, the court will consider the “4320 Factors”. (Family Code 4320). For example, even if husband recently started a new job—with a pay increase of 100% (significant changed circumstance), wife would still need to prove to the court that she needed her ex-husband’s financial assistance, e.g. she recently became disabled.

On the flipside, the payor could also return to court seeking a modification of spousal support if the facts justify a reduction or termination of spousal support. For example, at the time the parties divorced, wife was unemployed—with little to no hope of finding a job. About 1 year later, wins the lottery and receives a check for $500,000. Ex-husband would have a legal basis to request that the court terminate spousal support in this instance.

Ms. Garrett is available to assess whether an individual qualifies for a modification of child and/or spousal support. If a party is eligible to modify support, Ms. Garrett is able to provide the following services:

• Identifying the strengths and weaknesses of their case;
• Explaining the procedural requirements for a modification, to include, but not limited to, forms required, deadline dates, follow up required, etc.
• Explaining the substantive law relating to modification issues
• Coaching the individual with respect to preparing the motion documents, preparing the Income & Expense Declaration, preparing the supporting declaration and identifying the types of evidence that are useful in advancing the petitioner’s claims
• Coaching the individual to prepare for his or her hearing—providing an overview of the hearing process, providing tips and strategies in preparation for the hearing
• Explaining the follow up needed post-hearing, to include, preparation of the Findings & Order After Hearing, steps needing to be undertaken to ensure third parties are notified of the modified amounts, e.g. employer, DCSS, etc.