A prospective client will often ask this question after they have been divorced for about a year and have discovered that their co-parent received a new job, a large bonus or a pay increase since the time they last addressed child support.
There are several factors to think about before rushing off to a judge to seek a modification of support. Here are just five to consider:
Has only the other party’s income changed, or has your income also changed?
If your income has also increased since the last time child support was entered, you may want to ask a family law attorney to run the numbers on the child support calculation program to see if the new income levels for each of you will make a significant difference. You could also prepare a budget sheet to see if asking for more support can directly benefit the children and approach the situation in that way. Even though there is a child support calculation program available for on-line use with the Department of Child Support Services web site, I would caution that if you do not know how the program really works, there is some margin for error. (For example, did you know that adding Anew spouse income@ to the other party with a Married Filing Jointly tax status with his/her new spouse could decrease your support amount?)
Has the timeshare for the children changed?
If the timeshare (the time your child spends with the other parent) has changed to your disadvantage (such as your teenager now spending more overnight time with the other parent), then revisiting the child support amount could also be reduced instead of increased. I am sometimes informed by a client that it is not his/her fault that the child wants to spend more time with the other parent, or I am told that the other parent is alienating the child from visiting him/her. Unfortunately, according to the court, the timeshare is the timeshare and the why is not considered. So much for the court taking everything under consideration. The judge need only consider the statutory authority and the controlling case law.
Are there other changes that may affect the guideline amount?
Yes. If the support provider is now paying higher health insurance premiums, or there are union dues or mandatory retirement contributions required for his/her new job, those can reduce their obligation to pay child support. Thus, the new job’s increase in pay may not cause the support to be increased enough to make it worth seeking a modification. It is sometimes hard to tell at first glance what makes the numbers go up and down in the computer program. If you bought a house since the divorce, adding in your property tax and interest deduction “write offs” could reduce the support amount due to your having less taxable income. It may not make a lot of sense as to how the tax implications effect support guidelines.
Could seeking a modification of support cause unexpected results?
Yes. For instance, if there are other extra-curricular expenses being paid voluntarily by the paying parent, and an increase in child support is ordered, that parent may decide not to provide for those extra sports fees, dance classes, or piano lessons that enrich your children’s lives. Sometimes it may be better not to take the risk of changing support if it would be difficult for you to provide the same after-school activities that the children already enjoy.
If your children are caught in the middle of the process, you may get some backlash like “Why are you taking dad/mom back to court for more money?” While you may want to defend your position, perhaps the better answer is something such as, “That is between your dad/mom and me, and we will work it out so you don’t have to worry about it.”
Are there other ways to address this issue without filing a motion with the court?
Absolutely. You may want to engage the services of a Collaborative attorney or mediator to see whether you and your ex-spouse could open a conversation about whether there is a need to modify the support amount based on a change of your circumstances. You could talk about exchanging your pay stubs voluntarily so that no one has to send out a court form to the other that formally requests this information. (In case you didn’t know about this, the form is called a Request for Completed Income and Expense Declaration, form FL-396, on the court’s web site.)
In summary, if you can find a way approach to the topic with your co-parent in a non-threatening environment (maybe having a cup of coffee together if that is possible), the conversation could end in an agreement to look at the numbers together. Maybe there could be discussion about funding something else that causes financial hardship (e.g., yearbooks and graduation expenses that can add up quickly). If getting together privately is not a viable option for you and your co-parent, consider calling one of the trained professionals from our Collaborative practice group to brainstorm some other ideas for resolving this somewhat complicated issue.
Try to remain hopeful that you can accomplish your child support goals by using a cooperative out-of-court option.
Remember that the right amount of child support, is not always what a computer program comes up with. The better description might be the amount that will meet the reasonable needs of your children without causing significant detriment to the person paying or receiving it.
Jeanne Browne, JD is an attorney practicing in Sonoma County. More information in her bio on the “Find A Professional” page.
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