Life changes. Sometimes it changes a lot. If your life has changed since you got divorced, you may be wondering whether you can change your child support order to keep up with the times. While getting a child support modification isn’t necessarily difficult, it isn’t necessarily easy either. It also depends on a lot of different things.
One of the biggest things that affects child support is state law.
Every state has its own child support laws. These laws contain formulas for calculating child support. The formulas are known as guidelines and they apply in most cases. The child support formula varies from state to state.
Before you try to modify child support in your case, you’ve got to know your state’s child support laws. (Or, get an attorney who does!)
The rules for modifying support are fairly specific. If you try to modify child support in your case, and you don’t have proper grounds for modification, your request will be denied. In some instances, you may also get stuck paying your ex’s attorney’s fees, too. So, before you try to modify anything, you’ve got to know what you’re doing.
Here are answers to some of the most frequently asked questions about child support modification.
Child Support Modification FAQs
What is a Child Support Modification?
A child support modification is a change to an existing child support order. The modification can either increase or decrease child support. Because child support orders are often in effect for years, it’s not unusual for them to be modified. Sometimes they are modified many times over the years.
How Does Child Support Get Modified?
Parents can agree to make child support modifications themselves. If the parents can’t agree on a modification a judge may hold a hearing and then order that child support be modified.
Whether the parents agree on a modification or not, to be effective, any change in child support must be made into a court order and signed by a judge or appropriate hearing officer.
Can You Modify Child Support By Agreement?
If parents agree on that child support should be modified, they need to put their agreement into a court order. Then they need to present that court order to a judge. Once the judge signs the court order, the modification becomes effective.
Most states have form orders for modifying child support. You can either fill out that form order and take it to a judge yourself, or hire an attorney to do it for you. Whether you need to file a petition to modify support first, before you can file an order modifying child support, depends on the court rules in your area.
When Can Child Support Be Modified?
Child support can be modified in a variety of situations.
Temporary child support (ie the child support ordered during a divorce or parentage proceeding) can usually be modified at any time the case is pending. Child support that is in effect after a divorce or parentage proceeding can be modified as stated below.
Normally, child support entered after a divorce or parentage case is over can only be modified when a substantial change in circumstances has occurred. For example, if the paying parent loses his/her job, that could be grounds for reducing child support. Or, if the paying parent gets a new job earning more money, that could be grounds for increasing child support.
Child support can also be modified if the child has a substantial change in circumstances. For example, if a child gets seriously ill and his/her medical needs increase dramatically, that could be grounds for modifying support, too.
Sometimes child support can be modified without a substantial change in circumstances. For example, in Illinois, if the amount that a parent should be paying in child support is at least 20% different from the amount of s/he is paying under an existing child support order AND the parent receiving child support is receiving child support enforcement services from the Illinois Department of Healthcare and Family Services, then child support can be modified whether there is a substantial change in circumstances or not.
Modifying Support as Children Are Emancipated
Finally, child support can be modified as children age out of child support. For example, if a parent is paying support for several children, the amount of that support can be decreased as each child becomes too old to receive child support.
(NOTE: In Illinois, child support is paid until a child turns 18 or graduates from high school, whichever occurs last. However, child support typically does not continue past age 19.)
How Often Can Child Support Be Modified?
Some states limit how often a parent can modify child support under certain circumstances. Usually the limit is one change every 2 – 3 years. (You need to check your local court rules to see what limits may apply to you.)
For example in Illinois, if a parent is seeking to modify a child support order without showing a substantial change in circumstances, s/he can only do so every 36 months. However, if a parent has a substantial change in circumstances, this 3 year rule doesn’t apply.
How to Modify Child Support
Filing For A Child Support Modification
To modify a child support order, you start by filing a Petition to Modify Support in court. The Petition has to set out the reasons why you think support should be changed.
You have to file your Petition in a court that has jurisdiction in your case. If you don’t know what court that is in your case, talk to a lawyer in your area.
In addition to the Petition, you may also need to file additional documents, such as a financial affidavit. What you have to file in addition to your Petition varies from state to state.
After you have filed your Petition you will need to serve your ex with copies of it. You also have to give your ex notice of the hearing date. What you have to do to legally serve your ex with these documents depends on your court’s rules.
If you aren’t sure what you need to do to serve your ex properly, check your local court rules, or ask an attorney.
Finally, in addition to the Petition to Modify Support, you may also need to provide your ex with other financial information. For example, you may have to provide him/her with your financial affidavit, income tax returns, and other documentation supporting your position.
Again, exactly what documents you need to provide depends on the court rules in your area.
How to Modify Child Support Without a Lawyer
You can file a petition to modify child support yourself, or through a lawyer. Most states have websites that will provide you with the documents you need to pursue a child support modification.
These websites will only provide you with documents. They will not provide legal advice.
Also, if you are the person receiving support, you may be able to use a child support enforcement agency to represent you. That agency may provide you with a lawyer who will help you modify child support for free.
(NOTE: These agencies will ONLY help you get, modify or enforce child support orders. They will not help you with any kind of other parenting issue. Also, they only help the person receiving support.)
Most states, including Illinois, require parents seeking a child support modification to provide a financial affidavit and supporting documentation to prove that child support should be modified.
Once your petition has been filed you can also file requests for your ex to provide you with copies of his/her financial information. Your ex can also file requests for you to provide additional financial information to him or her.
The formal court process for exchanging information is known as discovery. What information you can or can not obtain during discovery depends upon the court rules that exist in your court.
Deciding on a Modification
If, after reviewing the documentation, you and your ex agree on a child support modification, you can enter the appropriate modification order at any time.
If you and your ex don’t agree, then a judge will hold a hearing on the requested modification. The judge will then decide whether child support should be changed. The judge will also determine the new amount of child support, and when that amount should start to be paid.
What To Expect During A Child Support Modification Hearing
At the child support modification hearing, the person who is seeking the modification has to provide the judge with evidence supporting his/her position. In other words, you’ve got to prove your case.
So, if you are a payor and you’re looking to reduce your support, you will provide the judge with proof that your income has gone down.
If you are the person receiving support, and you’re looking to increase your support, you will provide the judge with proof that your ex’s income has gone up.
After reviewing the evidence, and listening to witness’ testimony, the judge will decide whether child support should be modified. S/he will then enter the appropriate modification order.
While this hearing process seems fairly simple and clear, in reality it can be complicated and difficult.
If you don’t understand the court rules, you can lose your hearing simply because you screwed things up.
For example, not every document you produce will automatically be accepted as evidence in court. You may have to provide proof that the documents you’re giving to the judge are authentic, reliable, and relevant. If you don’t know how to do that, then key evidence you need to prove your case may never be considered.
The bottom line is that, if you really want to succeed at your child support modification hearing, you may want to hire a lawyer to represent you. At the very least, you should get some good legal advice and coaching before you try doing the hearing yourself.
Can A Child Support Modification Be Retroactive?
Yes and no.
Child support can be modified back to the date when one parent filed a Petition to Modify Child Support. However, that’s as far back as the modification can go.
That means, if you lose your job, but you don’t file a Petition to Modify Child Support for three months, you still owe the original amount of child support for those three months. You can’t go backwards and ask a judge to reduce the child support you already owe.
On the other hand, even if it takes several months to get a hearing on your child support petition, a judge can still change the amount you owe from the date you filed your petition forward. That is true regardless of whether you are seeking to increase or decrease support.
From a practical perspective, then, if your spouse files a petition to increase support, you may want to save money while the petition is pending. That way, if the judge does increase your child support back to the date when the petition was filed, you’ll have the money to pay the increase.
When Does A Child Support Modification Take Effect?
An order modifying child support takes effect on whatever date is stated in the order. Whether a child support modification takes effect as of the date the petition was filed, or on some later date, depends on what your judge decides.
Modifying Child Support Based on a New Law
Laws change. On July 1, 2017, a new child support law went into effect that completely changed the Illinois child support calculation. Illinois used to base child support solely on the payor’s income. Illinois now bases child support on both parents’ incomes, and the amount of time both parents spend with their kids.
The change in the child support calculation dramatically affected the amount of child support that is due in some cases. However, the new law specifically says that in order to modify child support, there must first be a substantial change in circumstances. You can’t modify support simply because the amount of support that would be due under the new guidelines is different.
If you don’t live in Illinois, but your state has changed its child support laws, don’t automatically assume that those changes will apply to you. The changes will only apply to already existing cases if the law SAYS it applies to existing cases. Before doing anything, you need to read the law. (It also wouldn’t hurt to consult with your local divorce attorney too!)
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