Defending Against A Child Support Modification Request

For the most current overview and guidance on Child Support Orders click here to visit our updated Modification Of Child Support Orders page.

Today’s discussion is intended for parties who want to defend against the other party’s attempt to modify the child support provisions in their Decree. If you are more interested being the one to to modify child support, please take a look at Kelly’s other video on that subject.

Could You Please Give Us A Roadmap For Our Discussion For When Someone Wants To Defend Against The Modification Change?

First, we’ll talk about legal standards that have to be met, but the other side has to prove to make a change.

Next, we’ll talk about the nuts-and-bolts procedures of the specific steps they have to do.

Then we’ll talk about negotiations and mediation with the other side, how and when to try to settle?

Finally, we’ll talk about how to actually prove what you need to prove in order to successfully defend against the modification.

What Does The Other Side Have To Prove To Modify Child Support?

It depends on how long it’s been since your last order.

If it’s been three years or more, they can file a simple motion to adjust child support based on the party’s current incomes. They have to show at least a 10% difference in the support amount, and they have to show that the change is not temporary. This procedure is shorter because they can get a simple motion hearing before a commissioner or a judge within a matter of two or three months, rather than having to go all the way through trial, which takes much longer.

If it’s been less than three years, or they don’t have the proof that they need, proof of the other side’s actual income or earning ability. They want to file a petition to modify. This is a longer process and involves more than just emotion. It involves eventually going to trial on the issue. They need to show a substantial and material change in circumstances. A 30% difference in income and earning ability, if it’s been less than three years. A custody change in custody or a significant medical problem or retirement. Depending on your circumstances, they may need to show either a 15% difference or a 10% difference, and they also, again, need to show that the change isn’t temporary.

And Once That Decision Has Been Made, Then What?

For a motion to amend the child support, they file a motion and a notice of a hearing and a proposed order. They just serve that by mail or email or hand delivery. They don’t need a summons. The defending party simply files their response within 14 days, if you’re before a judge. If you’re before the court commissioner, within 14 days prior to the hearing that’s going to be set up. The motioning party has a chance to file a reply brief seven days later. Then a hearing is held with the court.

For a petition to modify, which is a more extensive process, but also more thorough. They file a petition to modify a summons, triggering that a full-blown trial will eventually be needed if the parties don’t settle. The other side once they’re served with the summons and the petition, have 21 days to respond if they live in Utah. If they’re outside the state, they have 30 days to respond. After service of the summons and petition, each side needs to provide the other what’s known as initial disclosures. “This is our witness list of the witnesses we know so far, the copies of our anticipated exhibits, if we had to go to trial today;” realizing that we might discover things through the course of the litigation that we’ll have to supplement those disclosures later. There’s also a period of time that attorneys can conduct discovery to find out information to help bolster their case. I’ll be talking more about that. Then finally, if things don’t settle at mediation: trial, but the court won’t let you go to trial if you haven’t attempted to negotiate, if you haven’t attempted mediation at least once.

What Are The Actual Steps You Need To Take To Defend Against A Petition To Modify The Alimony Award?

One thing you need to look at right from the beginning, is whether or not there’s a “prefiling mediation requirement” in your Decree. In many people’s decrees, there’s a provision that says you can go to court first, or before someone can file a petition to modify or a motion to modify, unless you have to attempt mediation. If there is such a provision, and the other side files their petition before mediation, you can file a motion to dismiss their petition because they failed to follow the prefiling mediation requirement. There are other defenses we’ll talk about shortly.

Tell Me More About Negotiations. Can I Just Settle Things Without Having To Go To Court?

Absolutely. But the timing of when you mediate is significant. If you mediate early and you’re able to reach an agreement, Glory Hallelujah, you’ve just saved yourself a bunch of time, money and aggravation.

But sometimes the other side going into mediation has this unreasonable expectation bubble. Their expectations are huge, and they’re unreasonable, and you’re just not getting through to them why things should change. If you go into mediation without a pin to pop that unreasonable expectation bubble, then you may have just wasted a day at mediation, paying your attorney and the mediator just for you to say “here’s what I want and why,” and the other side to say, “pound sand.” Lots of folks decide, “you know what, I do want to mediate, but I need a pin to pop that unreasonable expectation bubble first. In other words, I need leverage.”

There are various ways that someone can get leverage. As the party defending the other side’s motion or petition, you’ve already got a good deal of leverage. After all, your order is in place until it’s changed. Until it’s changed, the other side still needs to keep paying child support. If they don’t, you can file a motion to enforce or a contempt motion against them to make sure they keep paying, or else the court can sanction them. For a discussion on contempt motions or motions to enforce, please take a look at my other videos on that subject. You can also make use of the discovery process to get additional leverage to convince the other side that maybe they need to settle more reasons.

Let’s Assume The Other Side Chooses To Move Forward With My Petition And Litigate The Issues, How Do I Show The Court The Decree Really Should Be Modified? How Do I Prove My Case?

First, again, it’s important to remember that it’s their burden to prove that there’s been a significant and material change of circumstances since the decree entered. Hold them to that burden of proof. At this point, it might be helpful for you to know how child support is calculated.

Child support is determined based on three things: (1) the party’s incomes or earning abilities; (2) the number of children; and (3)the number of overnights each party has with the children. Unless this is combined with a Petition to Modify custody or parent time, usually the overnights and the number of children is pretty clear. The real issue usually becomes the party’s earning abilities or incomes.

Sometimes a party is voluntarily unemployed or voluntarily under employed. Working fewer hours for a lower wage than what they’re capable of. Sometimes a party used to be able to make a lot of money, but now they’ve got fired from a unique position or the market for their product or skill has dried up. Sometimes a party or a child has such significant medical issues or some other big change in their life that their earning capacity has decreased. There are other reasons for changes, but those are the most typical ones.

The name of the game is accurately determining each party’s incomes or realistic earning abilities; hoping that the other sides has increased while yours has stayed the same or decreased.

How Do You Prove That?

To get the documents necessary to show all that you’ll want to conduct what I call “paper discovery” to help bolster your case. One that you might be familiar with is a subpoena. An attorney can subpoena records like bank records or pay stubs or employment records or loan applications, that sort of thing.

You will also get requests for admissions. Requests for admissions are written in a document that you send to the other side that basically says, “please admit X, please admit Y, please admit Z.” The other side has to respond to that request within 28 days. If they fail to respond within the given time frame, then everything that you’ve asked them to admit becomes truth for purposes of the case. Some examples might be, “admit that your income or earning ability is currently significantly higher than it was on the date that decree entered,” “admit that you’re voluntarily underemployed or unemployed, earning less than what you’re capable of earning, or working fewer hours than what you’re capable of working. “There are many more that can be used, and the other side has 28 days to respond to either admit or deny it. Again, if they let that deadline slip by, then the admission becomes truth for purposes of the case. If they deny the request for admission, and then you later prove that denial is false, their credibility goes down in the court’s eyes.

You also get interrogatories. These are open ended questions that you send to the other side in writing and they have 28 days to respond. An interrogatory can include questions like “describe in detail your income producing history since the entry of the decree through the present. What is the contact information is for your sources of income. What documentation is there out there that could demonstrate what your income is? Give me a list of all your bank accounts since entry of the decree, their account numbers, their contact information, what loan applications have you made since entry of the decree?”

One of the reasons why you want to ask that one is because very often people will make a loan application and state, “here’s what my income is, please give me money or a loan,” and they will list their income at the highest possible level. Then they’ll come to court and they’ll claim their income or earning ability is that lowest possible level. If you have this loan application where they stated to a financial institution, “ here’s my real income,” then the court’s going to take a pretty dim view of them claiming that it’s lower than that.

Another interrogatory might be, please “state fully all the reasons you do not work full time.” Whatever your interrogatories are, these should be specifically tailored to the needs of your case.

You also get requests for production of documents. These are like a whole bunch of subpoenas on the other side. Please give me your bank records. “Please provide me all your records about X Y or Z,” those kinds of things.

Initially, in my experience, only about a third of the responses that you get back from paper discovery from the other side are going to be helpful. 66% of it is going to be garbage. It’s going to be attempts to avoid answering the question, objections, answering the question they wished you would have asked, rather than the one you actually asked.

When that happens, you can file a motion called a Statement of Discovery Issues. Explaining to the court, “hey, Judge, here was my request; here was their cruddy answer. It’s completely insufficient. Here’s all the reasons why the court should order them to supplement their response and give us the real answer or the real documents.” The court will take a look at that motion and make a decision, and very often you’ll get more information after you bring it up to the judge’s attention how they’ve attempted to avoid answering X, Y and Z. In my experience, the court will grant about 50% on average of what you request.

Depositions are a very powerful form of discovery. A deposition is when the other party receives a notice that says they’re required by law to show up to an attorney’s office at a certain date and time. The notice will indicate that there is going to be a court reporter present, a stenographer, who is going to put you under oath to tell the whole truth. Then the attorney is allowed to ask that party questions for up to four or in some cases, up to seven hours. Even if they object to a question, they still have to answer it. It’s pretty hard to avoiding answering questions for four or seven hours. For really high-income cases, depositions might be necessary. However, if child support is the only issue and its not a super-high-income case, these would be overkill in most cases. Again, unless the Petition to Modify also includes and is combined with something like a request for a change in custody. If the only issue is child support, it’s likely overkill, because normally incomes and a change in child support would not justify the expense of a deposition, but it is possible.

Are There Any Other Types Of Discovery That Can Be Done To Help My Case?

Finally, we should talk about expert discovery. Another powerful form of discovery is expert discovery. In a child support modification case, you should be aware that courts can impute income and assume what somebody’s earning ability is based on what that person could earn, even if they’re not earning it now. If the other side’s earning ability is disputed one of the things you can do is get a vocational expert. A vocational expert reviews the other side’s education, skills, work history, analyzes the job market and issues a report estimating their earning potential, their earning capacity. You can get a vocational assessment on the other side, or you can get a vocational assessment on yourself.

Let’s suppose that your income has decreased significantly. You had a unique job and you can’t do that anymore for one reason or another, but nobody believes you. A vocational assessment can be done on yourself to demonstrate what your actual earning capacity is?

If you suspect the other side has the ability to earn more than what they claim, a vocational assessment can be crucial in proving that. If you file a motion for vocational assessment and you offer to pay the initial cost of it and say, “hey, Judge, make the other side do the vocational assessment with this assessor, but I’ll pay the initial costs. Just reserve final allocation so that I can ask to be reimbursed at trial if it goes that far.” One of the things that I do is help folks decide, do we need a vocational assessment, and if we do, help to line that up.

What About Temporary Orders? Can The Court Temporarily Change The Decree While We’re Waiting For Trial?

That is theoretically possible in extreme case. In child support modifications (especially where child support is the only issue), it’s rare and it’s often not worth trying to get a temporary change. That’s one of the things that you would want to consult an attorney about. It is easier to get a change at trial than it is on a temporary basis; because, on a temporary basis, your burden of proof is “immediate and irreparable harm,” whereas at trial, all you have to show is the necessary changes in the numbers. The good news is, once a motion or a petition to modify child support has been filed, the court can make retroactive adjustments back to the date that the petition or the motion was filed.

How Can An Experienced Family Law Attorney Like You Help?

An experienced Family Law attorney helps with choosing the right strategy, managing discovery thoughtfully to get you the evidence that you need, knowing how to gather, organize and present that evidence, effectively, knowing when to use a vocational expert and using those effectively, knowing what settlement negotiation to engage in and when, and of course, presenting your case effectively at trial.

Narrator:

I’m here with experienced Family Law Attorney Kelly Peterson, who assists clients in Changing or Modifying Child Support. If this is an issue for you or someone you love, don’t hesitate to contact Kelly Peterson’s office to see how he can help. He can be reached at the contact information listed on this site.

Still Have Questions? Ready To Get Started?

For more information on contest child support modification, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (801) 616-3301 today.