Child Support Modification


#1

Nutshell: Wife and I split in 9/09, separation agreement was agreed upon and child support was set. The agreement was filed in the courts and she wasn’t working at the time.

Currently: Wife sends me an email requesting for nearly double what we agreed (on the basis of the child support calculator). She now has a job. She states she will take it to court if need be.

Questions:

  1. If three years hasn’t surpassed is this even do-able?
  2. If the substantial change is over 15% does it have to be 3 years AND 15% substantial change? Or do they operate separately?
  3. Since she is now employed (greater income) will that offset my increased income since our original separation agreement? I make about 16% more now, but her income has nearly doubled since the time of filing the separation agreement?
  4. If we do end up before a judge can I combine the child support modification with a custody modification? Meaning, can I requested shared custody and split monetary support requirements?

Thank you in advance.


#2

The guidelines state that in order to modify child support at least 3 years must pass, and there must be a difference of 15% or more between the amount of child support payable under the existing order and the amount resulting from the application of the guidelines based on the parent’s current incomes. Such events are presumed to constitute a substantial change in circumstances warranting a modification. This however does not mean that other factors cannot allow for a modification before the passage of three years.
A total loss of income, for example could be considered a substantial enough change to allow for a modification.

If your ex is now employed with a greater income, she will not be entitled to an increase of support, in fact support would likely decrease. I do not see that a court would allow for a modification of support in this case.

As for custody, there must be a substantial change in circumstances relating to the children’s best interests in order to change custody, which is independent of support.


#3

Thank you so much for your timely response. Who from your local Charlotte office would you recommend to contact if this escalates and the need for a family lawyer arises?


#4

Ashley Wood is our client liaison, and she will set you up with an attorney in our Charlotte office. She can be reached by dialling the main number and selecting extension 100.


#5

Is a child leaving daycare (a substantial cost factor in CS) a sufficient reason to alter child support before 3 years?

If not, what would be your suggestion to prevent over paying for the years that child would not longer be in daycare?

Example: Child is 4 years old, currently enrolled in daycare, in one year would exit daycare for school. Agreement is made when child is still in daycare. If CS is not modifiable for 3 years, how do you prevent paying hefty CS for the 2 years?


#6

If the daycare costs, or elimination of the same make a large difference in support, this could be grounds for a modification.


#7

It’s been about a month now, and received an email stating that she was going to give me the “courtesy” of sending her lawyer my paycheck stub or her lawyer will contact my employer directly for the information. My response to her, was no response at all as usual. So here’s my question, in your professional opinion, is it better to stay quiet on response or try to rationalize my take on the situation with her? My guess is that it’s better to be quiet.

Also, do you believe my best bet is to wait and see if I receive official paperwork from her attorney with a court date, etc? I don’t want to “jump the gun” so to speak.

PS. If a separation agreement states the ground rules for child support, even though it’s not a divorce decree, do the same rules apply about the 3 years and 15% circumstantial change?


#8

I would suggest you go ahead and provide her with a copy of your pay check. She will eventually get it, and once her lawyer sees it, your ex may be advised to leave the support issue alone (ie she may not be entitled to anymore).

If a separation agreement is unincorporated into the divorce decree, either side can file for support through the courts, but will have to demonstrate why the amount they agreed to is no longer sufficient to meet the reasonable needs of the children.


#9

“sufficient to meet the needs of the children”…this is what kills me about child support laws. Most child support calculations don’t even come close to the definition of sufficient needs, most of the time it’s excessive.

So, let me drill down one more layer…she is living at home, and now she wants to get her own place, outside of that, my daughter will be starting school and requiring daycare.

  1. Is her wanting to move out an increase in the need of my child?
  2. Is the addition of daycare an increase in the sufficient need of my child? If I were to pay half it would equate to $130 (does this have to be 15% of what I already pay?..for example if I pay $100/mo does the increase have to be $15 or more)
  3. For further clarification its 3 years…AND…not or…increase in the needs of the child, right?

Thank you for all your time and help thus far, it’s truly great.


#10

Your ex’s expenses are not factored in to the child support calculation. Only the gross income of each parent, medical insurance expenses, and day-care costs are used in the calculation. An increase in day-care cost could be considered a substantial change allowing for a modification. The standard for modification is the passage of 3 years and a change in income of 15%.


#11

Thank you Erin…for further clarification if my income has increased 15% or more for example from $100k to $116K, and her income goes from $10K to $30K a year, will her increase over ride mine? Is that what you are saying? I just want to be 100% clear on that. I know my income has increased since the paper work but seems to me her increase from them would greatly over ride my increase. Thanks in advance!

Edit: BTW, the law states 15% or more between the amount of child support payable under the existing order and the child support resulting from the application of the current guidelines based on the parents current income…etc, etc. So I already know that my amount that we agree’d upon is nearly half of the guideline amount. So that’s my confusion?


#12

A modification is appropriate when, after running the new numbers there a 15% change in support.


#13

Yeah if you ran the numbers, it would be 100% change so I guess I better put on my negotiating shoes! I find it very sad that successful persons are penalized especially when the decision to leave/divorce was not of their own. I know there’s no way the courts could handle the load but these negotiations of the correct dollar amount for child support should be based on a rate appropriate for a child, not a lifestyle that the other parent wants. I want my child to live well, be well, etc. but gross amounts of money a month without direct supervision as to where it’s being spent is not the correct way to have it set up. The calculations are there as to speed up the process of divorce and mitigation and I get it, just a shame that people take advantage of it.