Modification Of Child Support Orders
In order to modify child support, a significant change not contemplated by the decree is required.
The following circumstances constitute such a significant material change:
- if child support has not been modified within the previous 3 years, and a party’s income has changed such that there would be at least a 10% difference in the child support amount
- changes in custody
- a 30% or greater change in a parent’s income
- material changes in medical needs of child
- material changes in a parent’s ability to earn
The court is allowed to consider new children that have entered the home, but that factor may not constitute enough of a change by itself, since it could be contemplated at the time of the divorce.
Interference with visitation by one parent does not constitute change of circumstance for purposes of changing child support, but could be a change of circumstance for purposes of modifying custody or visitation.
Under What Circumstances Can I Ask The Court To Modify Child Support? What Is Considered A Substantial And Material Change In Circumstances?
A party can ask the court to modify child support by filing a simple motion, or else with a petition to modify. Filing a petition to modify is a more extensive process. A modification of child support can be done with a simple motion and review hearing, if there has been no modification or change to child support within the proceeding three years. However, even if there has been no modification within three years, a party can choose to file a petition to modify and go through the more in-depth process if they need to do the discovery. Discovery allows the party to gain information to prove the changes in incomes or circumstances necessary to modify the child support. In other words, requesting a modification by motion is quicker and easier compared to a modification through petition. However, a modification through petition allows access to discovery, which in turn helps bolster the petitioner’s case.
If there has been a child support determination within the proceeding three years, a petition to modify must be filed. The petitioning party must demonstrate that the combined parties’ incomes or earning abilities changed and reached 30% or more of their incomes, or that the difference in child support is greater than 10%. This guideline is specified by Utah code 78B-12-210. Generally, substantial and material changes in circumstances includes changes to one or both parties’ incomes or earning abilities. However, if an unusual or catastrophic change in the child’s needs occurs, such as the child is in an accident and becomes a paraplegic, a party may also request an upward deviation of child support that goes beyond the Utah Child Support Guidelines. Those circumstances, however, are rare.
What Specific Steps Are Usually Involved In Modifying Child Support?
If the Utah Office of Recovery Services (ORS) performs an administrative review of child support, they generally don’t go in-depth when it comes to finding evidence to modify child support administratively. Administrative adjustments in child support can always be changed or overruled by court modifications (following a motion or petition to modify). As previously stated, if there has been no change in child support for a period of three years, a court modification can be requested through a motion. In that situation, the petitioner could simply file a motion stating the parties’ current incomes, providing proof of those incomes, and asking the court for a hearing to adjust the child support. At the hearing, the court can look at the incomes and adjust the child support accordingly.
If greater evidence is needed, or if there has been a child support determination within the previous three years, the petitioner could file a petition to modify and serve it with a summons to the other party. Under this circumstance, the child support modification will be determined by the judge approximately one year after the parties have had an opportunity to undergo the discovery process. The discovery process allows the parties to gather the information they need to present their case at trial.
Can Both Spouses Agree To Modify A Child Support Order Without Going To Court?
If both spouses agree to modify a child support order, they do not have to go to court. The parties can submit a written agreement to the court indicating the change in the incomes that was used to determine child support. They could also submit a proposed order and the new child support calculation worksheet to the court. Based upon the stipulation of the parties, the court will generally change the child support amount. However, it is worth noting that the parties cannot agree to waive child support because future support belongs to the child. It does not belong to the parents to waive, nor can the parties generally agree to lower the child support amount dictated by the Utah Child Support Guidelines.
However, child support arrearages (past due support) belong to the parent who is the child-support obligee, and not to the child. As such, child support arrearages may be waived. The theory behind the ability to waive child support arrearages is that the child has already been fed, clothed, and housed for the previous months at the expense of the child support obligee, who is owed support from the child support obligor. Presumably, the child support obligee has already paid for the child’s actual expenses in previous months. Therefore, they are simply being reimbursed by the child support arrearage. Thus, the arrearage belongs to the child support obligee and not the child. As a result, the obligee could waive the arrearage even though future support cannot be waived.