Every state has laws that establish guidelines for judges to use when setting child support. The purpose of these child support guidelines is to ensure consistency, so that judges across the state will follow the same set of rules. Generally, courts will calculate the amount of parental income available for support, and factor in expenses such as health insurance premiums and child care costs, and then consider the amount of time each parent spends with the child.
After coming up with a base amount, the court may consider other factors it feels are pertinent, such as a child's special medical or educational needs. The judge will then set the monthly child support obligation.
For most families, circumstances change over time for either of the parents, the child, or for all involved. If a change is significant, there may be a need to modify the child support order.
Essentially, there are two ways to change an existing child support order.
The easiest way to change a child support order is for the parents to reach an agreement about a new amount. If this happens, however, you can’t just shake on it and assume that’s good enough. Any change to a support order must be documented in a new order and signed by a judge. If that doesn’t happen, the old order remains in effect, despite your agreement.
If you follow a verbal agreement without officially changing an existing child support order, things can get dicey. Without a new court order, the paying parent could end up with a substantial support arrearage, meaning back child support. If you’re paying the other parent directly, and that parent reneges on the agreement and goes after you for the original amount, you could be liable for the difference between what you’ve been paying and the amount on the last support order.
If your existing order requires your employer to garnish child support from your wages, the employer can’t change the garnishment amount without a new court order.
Another fact to be aware of is that at least some states, like New Jersey for example, won’t permit a judge to retroactively modify the support amount. So, depending on where you live, although you made the agreed-on lower payments in good faith, you’re still likely to be stuck paying arrearages.
You should also note that a judge doesn’t have to accept the new support figure you agree on. If the amount is higher than the original order, that shouldn’t be a problem. But if the figure is substantially lower, especially when compared to the support guidelines, you’ll need to convince the court that the new amount is fair.
Sometimes, parents can't agree to a change in child support. In that case, you’ll have to file a motion (written request) with the court, asking for the modification and explaining how there’s been a change in circumstances since the date of the last support order.
The key issue is whether circumstances have changed enough to justify amending the existing support order. There are any number of events that might qualify as a change of circumstances warranting a child support modification. These may vary from state to state, but some of the more common ones are:
Regarding a parent’s remarriage, support guidelines normally don’t include the new spouse’s income in calculating support. Rather, that income plays an indirect role, because it likely decreases the parent’s out-of-pocket expenses, such as for household items. That frees up some of the parent’s income, which the court could then apply to calculating child support.
Another issue to be aware of relates to a parent’s possible voluntary income reduction. For example, a parent might intentionally switch to a lower-paying job to try to reduce child support obligations. Unfortunately for that parent, the law allows courts to impute income. A judge will look at elements such as the parent’s education, prior earnings, and work history, and then base child support on what the parent should be earning, rather than the reduced amount. A parent that tries to avoid child support this way will likely end up paying the same amount as before.
Finally, depending on your state, child support awards may include a cost-of-living-adjustment (COLA) provision. This means that, periodically, the support amount will increase by the cost-of-living rate. The rate is based on an established economic indicator, such as the Consumer Price Index. In some cases, this provision might avert the need to request a child support modification.
Changing a child support order can be complicated. If you have questions, speak to an experienced family law attorney in your area.