When a Court will Consider a Motion to Modify Child Support
As a Raleigh Child Support Attorney, I hear the same questions many times throughout the week. When it comes to whether or not a court might be willing to modify a child support agreement, here are some insights that might help.
Whether you are paying child support or receiving child support, an important thing to keep in mind is that child support can be modified.
Think you are paying too much child support?
Did your ex get a new job making more money?
Has something happened that that changes your ability to make child support payments?
If you have answered yes to any of these questions, there is a good chance you are a candidate for child support modification and you should seek out a qualified family law attorney for help.
If you think you the amount of support you are being paid should be increased, and you do not have a court order, you can file a complaint for child support at any time and a judge will decide the appropriate amount of child support.
If you already have a permanent court order, including an agreement that was incorporated into a court order, you must first prove to the court there is a substantial change in circumstance from the circumstances that existed at the time the order was put into place.
It is also important to note that even if there is a substantial change in circumstance, if you are trying to increase the amount you are being paid in child support, you must also prove that the supporting spouse can pay an increased amount.
So, what exactly is a substantial change in circumstance?
It’s important to keep in mind that all child support cases, including those for modifications, are to carry out the goal of providing for the child as if the family was intact (meaning that the parents and the child lived together).
Every case varies on the family’s circumstances, so it is always best to seek out an attorney regarding any child support modification.
Generally speaking, the circumstances to change or modify child support fall into three categories:
- the ability of the supporting-parent to pay child support,
- the ability of the custodial parent (the parent being paid child support) to provide for the child or children, and
- the needs of the child or children
If you have a court order for child support that is at least three years old and the amount of child support ordered verses the new amount of child support under the North Carolina Child Support Guidelines has more than a 15% difference, it is presumed there is a substantial change in circumstance.
Ability of the supporting parent to pay child support.
For a motion to decrease the amount of child support, an increase in the needs of the child do not have to change. Meaning if the supporting parent’s income decreases, child support can be modified even if the needs of the child remain the same.
When incomes change, the court will determine whether the change was voluntary (if it is a decrease in income which would lower the amount of support). If you quit your job because you did not want to work, or it is otherwise considered a voluntary change, a judge is unlikely to lower your child support obligation.
Ability of the custodial parent to provide for the child or children.
Again, an increase in income alone is not enough to justify an increase in child support. That being said, where a custodial parent was not receiving public assistance at the time of the order but then begins to receive it, that change alone is enough to motion the court for a modification of child support.
If the custodial parent has an involuntary decrease in income, this may be enough on its own to modify child support, where a voluntary decrease is not enough. When considering whether the decrease in income is involuntary, a court will look at the motivation behind the decrease. If the decrease shows a disregard for parental obligations, it will be considered voluntary.
However, if the decrease is to improve the well-being of the children (i.e.: going back to school or some sort of vocational training which results in less immediate income) it may be considered involuntary. An increase or decrease in the needs of the child or children.
While needs of the children alone can be enough to justify a court’s consideration of modifying child support, it is important to remember if you are trying to increase the amount you are being paid in child support, you must also prove that the supporting spouse can pay an increased amount.
In other words, if the needs of the child require more support, but the supporting spouse cannot reasonably provide such support, the child support may not be modified.
A common example of a change in the needs of children relate to childcare.
Often when a child moves from daycare to kindergarten, the financial needs of the child decrease; however, this is not always the case as sometimes there is a need for before/after school care.
Another common example is the age of the child. Often, as children get older, the grocery bills increase as well as the cost of clothing, recreational activities, etc. These are only a few examples of changed circumstances that justify the court to consider modification of child support. Be aware that once a motion is made, even if it is to decrease child support, evidence can also be presented that will allow the court to increase the child support obligations you have.
It also works in the reverse.
If you make a motion to increase the child support obligation of the supporting spouse, evidence presented to the court may result in a decrease in support.