After a divorce, the parties may want to change the amount of child support and/or spousal support. This may be due to the loss of a job, large medical bills or other change in financial circumstances. Here are some legal rules for making changes.
Child Support
Both parents may agree to change the amount of child support. However, a judge usually must approve the change for it to be legally enforceable.
If the parties cannot agree on a change, either of them can ask a court to order it. Courts usually will modify child support amounts only if there has been a significant change in circumstances. This helps prevent them from being burdened with frequent change requests by the parents.
Although laws for modifying child support vary from state to state, several situations can often support a request to change the amount of child support. These include:
• The party paying support is out of work or now earns less money than when the support order was made. But you still have to pay child support even if you lose your job. A court can modify the child support order to lower the amount you pay. In most states, your job loss must be due to no fault of your own.
• The party paying support earns more money than when the support order was made. Courts in some states follow the rule that children are entitled to share in their parents' good fortune. Courts in other states follow the rule that an increase in the paying party's income is not enough to raise the amount of support -- there must also be an increase in the child's needs.
• The party receiving support now earns significantly more money. In this case, the party paying support may be able to get his or her payment obligation lowered.
• There has been a change in custody or the amount of time the child spends with each parent. For example, if your ex-spouse was given custody of your child when the support order was issued, and the child now lives with you, you may be able to reduce child support or receive it from the other parent.
• The child’s needs change. This could be due to educational expenses, extracurricular activities or other reason.
All states allow a modification in the amount of child support to provide for the child's health needs, including health insurance and other expenses, without a showing that there has been a material change in circumstances.
Cost of Living Increases. Many states allow the use of a cost-of-living adjustment (COLA). This provides for an automatic increase in the amount of child support based on changes in an economic indicator like the Consumer Price Index. In some states, judges will include in their child support orders a clause providing for a COLA. This will eliminate the need for a party to go to court when the cost of living goes up.
If there is no COLA in a child support order, a party may still be able to get a cost of living increase. Some states have laws that allow for an increase in the amount of child support after a certain period of time passes from the child support order (typically two years) and once the Consumer Price Index (or other indicator used) has gone up by a certain amount (in some states, the amount is 10%). To obtain a Cost of Living Adjustment in these circumstances, a parent usually does not have to show that there has been a significant change in circumstances. However, he or she may have to seek court approval for the change.
People who want to modify child support should get legal help to do so. Seek the change request as soon as possible, as judges usually won't make the new amount of child support retroactive before the date the change request was made. Many people believe that if they cannot make a child support payment, what they owe will later be discounted or reduced by a court if they have a valid explanation for not paying, like losing a job. But this is rarely the case, as courts usually will not reduce the back pay owed.
Spousal Support
As with changes in child support, the loss of a job, large medical bills or other change in financial circumstances may prompt one of the parties to request a change in the amount of spousal support. If both parties agree to the change, the modification can usually be made without going to court. However, it’s advisable to get court approval. This reduces the chance of problems if someone changes his or her mind later.
If one side won’t agree to the change, the other can ask a court to order it. Courts can make changes if not prohibited by the terms of the original divorce. If justified, courts can even order changes despite what the original divorce said. However, these changes are usually made only in the case of extreme hardship.
To get spousal support modified, one side usually must show a significant change in circumstances. For example, the person making payments may be able to get them lowered if he or she now earns a lot less or if the recipient’s income is much higher. For support recipients, it’s often harder to get higher payments just because the paying ex-spouse now earns more. The recipient usually must show a significant change in his or her own circumstances to justify an increase.
Spousal support typically ends when one of the spouses dies, a court order says it ends, or the person receiving support gets remarried. In some states, when the person receiving support is living with another person -- but not legally married to him or her -- that may be a basis for modifying the amount of support.
As with child support, courts usually will not make a change in the amount of spousal support retroactive prior to the date the request to make the change was made. People who want to change the amount of their spousal support should therefore seek legal assistance as soon as possible.
If you are interested in modifying the amount of child or spousal support, call us. We have significant experience in this area, and can advise you of your rights as well as handle the change request. Pursuing a request to change child or spousal support can be complex, and having a lawyer's help can significantly increase the chances that your request to modify the amount of support will be approved.
Contact an attorney at Triscaro & Associates today. Please call us for all your legal needs. We offer a full range of legal services to individuals, families and businesses, including personal injury, estate planning, real estate, family law and business matters. We are dedicated to providing the highest quality legal services at a reasonable cost.