Five need to know factors when considering child support modifications in San Diego
It is a comfort to know that you can make changes to child support orders. Nothing is permanent. California’s statewide uniform child support guideline states that child support orders are modifiable “at any time as the court deems necessary.”
Just to warn you, until an order for child support is modified, you must pay the child support amount in the existing order. If you are one of the many people in these turbulent economic times having trouble either making child support payments or needing more child support due to a change in work or living situation, we can help you… and fast.
We will work with you to quickly and efficiently evaluate you and the other parents’ situation to come up with the best solution to modify your existing support order. Below are some of the key factors we would like you to think about when seeking a child support modification with one of our experienced and committed Family Law Attorneys at Minella Law Group.
1. Do not delay a modification
Be sure to take steps right away to modify child support if there are circumstances not allowing you to pay child support or if there are changes warranting an increase in child support. If you are unable to pay and you do not change your child support obligations, those payments become what’s called “in arrears.” There is no way of getting rid of a payment in arrears, other than paying it. It cannot be discharged in bankruptcy and cannot even be reduced by a judge.
If the other parent will not agree to modify child support, hire a qualified child support attorney to immediately file a motion with the court. If the other parent agrees to a child support modification, be sure to get it in writing and have it approved by a judge. If this is not done and the other parent changes their mind, the original support order still stands and you will be responsible for the amounts you did not pay.
Whatever your situation, whether negotiating with the other parent or taking it to court, we will assist and advise you in modifying your current child support orders in any type of circumstance.
2. Agree to modify with other parent
You should try to first come to an agreement with the other parent to modify the child support terms. But, be sure to hire a skilled family law attorney well-versed in these types of modifications to assist you through the negotiations to ensure proper protections. After you come to an agreement, you must request that the judge approve the change. It is more than likely this will occur, unless the agreed-upon amount is far below California guidelines. If this is the case, you will have to justify why the agreement is below the guideline amount, and that it will adequately provide for the child’s support.
3. Material change in circumstances to modify
If you and the other parent cannot agree on changes to the existing child support order, you will need to ask the court for a hearing to modify. The party seeking the child support modification will have to show that there is a “material change of circumstances” that justifies a modification of the existing order.
There are no rigid guidelines for determining whether a material change has occurred. So long as the child support guidelines are met, each determination is made on a case-by-case basis. This determination can only be reversed for abuse of the judge’s discretion. Examples of substantial or material changes include:
- An increase or decrease in visitation time with the child
- Shifts in either parent’s financial ability to pay
- A child suffering a permanent disability requiring costly care
- Increases or decreases of child costs
- A parent becoming disabled
- A parent becoming incarcerated
- Increased child-related travel expenses due to visitation changes.
- A parent suffering extreme financial hardship
4. What qualifies as a hardship for modification
If you are suffering “extreme financial hardship,” a court may modify child support by allowing a deduction from your income. Extreme financial hardship occurs when there is/are:
- Extraordinary health expenses,
- Catastrophic losses that are uninsured, or
- An adoption or birth of a child from another relationship or marriage (a deduction is given for basic living expenses of children living with the parent experiencing hardship)
This hardship deduction is not automatic; the court must consider all facts of income and expenses of your hardship.
5. Earning capacity as opposed to actual earnings when looking to modify
What you actually earn is not necessarily controlling in determining the ability to pay. A court may consider your “earning capacity” instead of actual earnings taking into account what is in the best interests of the children. Thus, a court may modify based on earning capacity even if there is no indication that an obligated parent intentionally and deliberately avoided financial obligations of supporting their child. If a court finds there is an opportunity to work and employment exists for a parent that is underemployed or unemployed, it may attribute earnings based on earning capacity, consistent with a child’s best interests.
