Decreasing or Increasing Child Support: Is it Possible?

Posted by 21 Feb, 2011

Child support orders are modifiable long after a judgment’s finality. Subject to certain limitations, child support orders are modifiable at any time as the court deems necessary.

The family law court has primary jurisdiction over modifications. Once a marital status/dissolution action has been filed, the family law court’s jurisdiction attaches. Disputes over the modification of child support should ordinarily be heard in the family law action in which the original support obligation was imposed. Many times, parents relocate to different states or countries and in that instance, there is a bases for shift in jurisdictional situs.

Reason for Modification: Generally, courts will not modify or revise a child support order unless there has been a ‘material change of circumstances.’ There are no rigid guidelines for determining when the circumstances have sufficiently changed to warrant a child support modification. The determination is made on a case-by-case basis and may turn on the facts particular to each individual case (such as ability to pay or need).

Ability to pay: A change in either parent’s financial position is not an automatic ground for modification. The Court will examine both parties’ circumstances and will evaluate the circumstances according to statutory factors set forth in the Family Code.

Parent’s increased wealth: The obligor parent’s enhanced wealth often itself will be grounds for increasing the child support level.

Earning Capacity vs. Actual Earnings: The parent’s actual earnings are not always the controlling question when calculating the obligor’s ability to pay. The Court has discretion to consider the earning capacity of a parent as opposed to the parent’s income, so long as it is in the best interests of the children.

Can both parents agree to modify support? The parents may agree as between themselves to increase court-ordered child support payments at any time and under any circumstances. The agreement should be reduced to a writing and signed by both parties.

Can my ex-spouse’s/new mate’s income be considered? Trial courts may not consider the amount of support the income of a parent’s subsequent spouse or nonmarital partner makes except in ‘extraordinary cases.’ For example, new mate income may be considered if child would otherwise suffer ‘extreme and severe’ hardship.

Bottom Line: Child support modification is determined on a case-by-case basis with the best interest of the minor child at the forefront.

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