Because parenting is a long-term commitment, often the agreement parties came to initially regarding child support becomes less fair over time as circumstances change. However, bringing a modification action is not always an easy process and cannot be brought for small adjustments in circumstance or income. Ideally, an initial child support agreement will anticipate changes in income and circumstances, lessening the chance that the parties will end up in court yet again, but often this is not the case. A modification action can impact a party’s financial affairs for years to come, making this an especially important action to contact an attorney about.
Substantial Change in Circumstances Standard
Once child support has been established, unforeseen future developments may necessitate an increase or decrease of an existing order. A child-support order may only be modified on a showing of a substantial change in circumstances that makes the order unreasonable and unfair.
While most original child support orders incorporate regular cost-of-living expenses, future unanticipated financial changes, like a job loss or a dramatic pay increase, might necessitate a modification of child support. A dramatic change in the parenting time of the parties might also necessitate a modification of child support as one party might cover more of the child’s expenses.
Minn. Stat. § 518A.39, subd. 2(a) lists the exact circumstances that may warrant modification including:
(1) substantially increased or decreased gross income of an obligor or obligee;
(2) substantially increased or decreased need of an obligor or obligee or the child or children that are the subject of these proceedings;
(3) receipt of public assistance;
(4) a change in the cost of living for either party as measured by the federal Bureau of Labor Statistics;
(5) extraordinary medical expenses of the child;
(6) a change in the availability of appropriate health care coverage or a substantial increase or decrease in health care coverage costs;
(7) the addition of work-related or education-related child care expenses of the obligee or a substantial increase or decrease in existing work-related or education-related child care expenses; or
(8) upon the emancipation of the child.
There is much ado about what exactly is considered a substantial change in circumstance. In some states, the court will not consider a pay raise lower than 20% to be a change warranting the prior terms unreasonable. A poor relationship between a child and parent is usually not enough to determine there has been a substantial change in circumstances, warranting less time with one parent and less child support. Additionally, different courts weigh income and earning capacity differently in determining what determines a substantial change in circumstances. Courts have had to wrestle with cases where a person voluntarily leaves their job to attend graduate school or is voluntarily unemployed or underemployed. Courts are generally lenient when determining child support owed by an unemployed parent when there is evidence that the parent has put a good faith effort into finding a job. However, courts are not as lenient when a person is willfully unemployed.
Also, a modification action can be retroactive depending upon when the party opposing the modification was served. If a person loses their job on December 1st and the person opposing the motion is served with the motion on February 1st, a judge will often order payment of the difference in child support from February on, even if the modification order is not published until May 1st.
While parents on good terms will often modify a child support agreement cooperatively and off the record, parental modification agreements are subject to approval by the court and are not enforceable until this occurs, even if the parties agree. That means that any permanent, enforceable child support modification agreement must be approved by the court. Even if you have confidence that an informal agreement about modifying child support will work short term, it is important to get this agreement approved by the court, as circumstances often change in unexpected ways as parties’ lives change over the years, and the original agreement non-binding.
Collection of Modified Child Support
Often, a modification action is not agreed upon by both parties. That means that a modification in child support might lead to an increased risk that the child support will not be paid.
Historically, parties were left on their own to collect unpaid child support. While a party legally could bring a contempt action, parties often couldn’t afford to bring a contempt action. However, in 1974, Congress enacted Title IV-D of the Social Security Act which created a federal partnership aimed at establishing and enforcing child support orders. Now, constructive contempt is willful disobedience of a court order.
Unfortunately, even though access to your child is at risk, an attorney is not state-provided the way that it would be for a criminal trial. In other words, there is no “right to counsel” in a family law case. Therefore, even if you are owed child support, you often must retain your own attorney to bring an action to collect.
Enforcement of collection can be done through using civil collection tools or criminal prosecutions. Interception of tax refunds, wage garnishment and other types of income withholding are common ways that courts will collect child support. Additionally, all states have statutes authorizing criminal prosecutions of obligors who willfully fail to pay child support as ordered. That means that a person can be arrested and prosecuted if they fail to pay court ordered child support. Unlike most debts, child support obligations are not relieved in a bankruptcy.
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Contact John Lesch today if you are dealing with a child support modification or collection issue. We understand that recieving the funds to support your children – and paying a fair amount in child support – is an incredibly important and long term financial arrangement. While modifying child support can be a daunting process, an experienced attorney will be able to understand the intricacies involved in the modification and collection process and will be able to find the best resolution for your case.