How to Modify Child Support Provisions In Your Decree

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 modify the child support provisions in their Decree. If you are more interested in preventing such a change on defending against the other side’s request 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 Change Or Modify Child Support Provisions?

First, I’ll talk about the legal standards that have to be met, what you have to prove to make a change.

Next, we’ll talk about the nuts-and-bolts procedure of the specific steps to modify child support. 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 be successful in modifying support.

What Do You 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, you can file a simple motion to adjust child support based on the party’s current incomes. You have to show at least a 10% difference in the support amount, and you have to show that the change is not temporary. This procedure is shorter because you 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 if you don’t have the proof that you need, proof of the other side’s actual income or earning ability, then you’ll 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. You 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 changes or a significant medical problem or retirement. Depending on your circumstances, you may need to show either a 15% difference or a 10% difference, and you also, again, need to show that the change isn’t temporary.

How Do You Know Whether To File A Motion Or A Petition?

If it’s been three or more years and you have the evidence you need in hand already, if you have evidence of the other side’s earning ability or income, then a motion to modify the child support is fast and there’s no formal discovery. No request for admissions or interrogatories or depositions. Unless both sides agree or the judge allows it. If it’s been less than three years or if you don’t have the proof that you need yet, you’ll want to file a petition to modify because you’ll be allowed full discovery rights. You would file a formal summons and formal service on the other side of the petition, and the summons is required.

What If I Don’t Have All Of The Evidence I Need, But I Still Want To Go Faster?

There are some circumstances where it may be appropriate to go ahead and file a petition instead of a motion. Go ahead and conduct discovery, which we’ll be discussing soon. Then, once you have the evidence that you need, dismiss or partially dismiss your petition to modify. For example, if you’re combining your petition to modify the parenting plan or custody, you could dismiss the child support portion of the petition and then just go ahead and file a motion to modify a child support to get that in front of the judge sooner, rather than having to wait all the way to trial.

Once That Decision Has Been Made, Then What?

For a motion to amend the child support, you’d file a motion and a notice of a hearing and a proposed order, and you just serve that by mail or email or hand delivery. You don’t need a summons. The defending party simply files their response within 14 days. If you’re before a judge, or 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 and then a hearing is held with the court.

For a petition to modify, which is a more extensive process, but also more thorough. You 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. Now the service has to be done formally. Usually, via a process server, unless the other side agrees to accept service by signing a document saying, “I don’t really need to be served by a constable. I’ll just accept service of the petition after service has happened and the required time periods to be lapsed.”

The other side typically will file either an Answer or an Answer and Counter-Petition, if you had to file a Petition to Modify. If all you had to do was file a simple motion to modify child support, all they have to do is file a response within 14 days.

After the response or answer has been filed if a petition to modify is the route you’ve gone and the other side’s been served, the time period has elapsed. Each side needs to provide the other with 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 will have to supplement those disclosures later.

Sometimes a litigant will file a motion for temporary orders after those things have been done, which we can talk about more in a bit, trying to get the orders changed from what the decree says, pending the litigation.

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. 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. If there is no prefiling mediation requirement in your decree and you’ve gone through the temporary order stage and the discovery stage and you’re ready to go to trial, the court’s still going to require that you mediate at least once before you go to trial if you haven’t done so by that point.

You Filed Your Motion Or Petition Or About To Do, So What Then?

One thing you need to look at right from the beginning, is whether or not there’s a prefiling mediation requirement. In many people’s decrees, there’s a provision that says before you can go to court, you have to attempt mediation. Some prefiling mediation requirements say mediation is required before filing a petition to modify, but they don’t say anything about other court filings, like motions to modify child support or motions to enforce or to have the other side held in contempt. You’ll have to look carefully to see if a prefiling mediation requirement is in the decree.

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. For example, if you do temporary orders and you do well at the temporary order stage now, time is on your side. “Now, other side, let’s go to mediation and if you’re going to be unreasonable now, no skin off my nose: I’ll sit back on these temporary orders during the pendency of the litigation.”

There are other ways to get leverage as well, like going through the discovery process so that you can actually get the evidence you need to convince the court and the other side, maybe they ought to settle more reasonably.

Let’s Assume I Have 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?

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. For example, if child support is, say, $1,000 a month, and due to a change of circumstances, the pay your spouse files, files a petition to modify, and could really only pay $250 a month until it gets to trial. That person would be accruing a $750 arrearage every month, but at trial, the court could say, “I’m going to adjust child support to $250 a month, and I’m going to do that retroactively all the way back to the date of the petition.” Thereby, wiping out the arrearage that had accrued. If they should have been paying a lot more because their income or earning ability was a lot higher, the court can retroactively increase their child support all the way back from the date the petition or motion was filed.

How Can An Experienced Family Law Attorney Like You Help?

An experienced Family Law attorney helps with choosing the right filing strategy, whether it’s going to be a motion or petition, drafting a strong petition, 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 Vo:

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.

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