Divorce: Modifying Child Support FAQs

• At the time of my divorce I was unemployed. I'll be starting college soon. Will student loans be considered "income?"
• Both my ex and I have moved from the state where we got divorced. He's making more money now and I need more support. Where do I file?
• Can I get an increase in my child's support order because the child is older?
• I spend nearly 50% of the time with my son, even though our custody orders don't reflect that. Can my support obligation be reduced?
• I was recently in an accident and am receiving disability benefits. Can the support order be reduced or terminated?
• I'll be moving to another state soon, with permission from my ex. The cost of living is higher in the new location. Will this entitle me to an increase in child support?
• I'm considering retiring early because of some health problems. Can I get a reduction or termination in my support payment?
• I'm obligated to pay support but want to start college. I won't have much income and can't pay support from my student loans. Can I reduce the support order?
• I've been paying support according to a support order for five years. I have reason to believe the child isn't mine. If I get DNA tests and the child isn't mine, what will happen?
• My income has increased since the support order was created. Can I be penalized for not paying more because of my increased income?
• My minor son recently got married. Do I still have to pay support for him?
• My son is now in college and has a scholarship that pays his tuition, room and board. I agreed to pay part of his higher education. Do I still have to pay for any additional expenses he has?
• Since our divorce, my ex-husband has been promoted several times in his job. His income has increased dramatically. Can I ask for an increase in his support payments?
• When should a child support order be modified?

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Q: At the time of my divorce I was unemployed. I'll be starting college soon. Will student loans be considered "income?"

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• A: Student loans are likely not going to be considered income, as they have to be repaid, and can be based on need.

  But the court can "impute" an income to you based on working full-time.

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Q: Both my ex and I have moved from the state where we got divorced. He's making more money now and I need more support. Where do I file?

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• A: Most likely, the Uniform Interstate Family Support Act ("UIFSA") applies to your situation. This uniform law attempts to avoid multi-state support actions by favoring litigation in the state where the child is living. The state that originally issued the child support order has exclusive, continuing jurisdiction to modify the order unless both parents and the child no longer live in that state. In this circumstance, the state in which you and your child live should have jurisdiction to modify the support order. The state in which the original order was entered simply has jurisdiction to enforce its own order.

  If the state where you live has adopted the UIFSA (a majority of states have), your modification action must take place in that state under its child support laws.

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Q: Can I get an increase in my child's support order because the child is older?

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• A: It depends on state law. Some states look only at the income of the parents, and the expenses of age are figured into the calculation. Other states also look to the child's needs as well as the parental income.

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Q: I spend nearly 50% of the time with my son, even though our custody orders don't reflect that. Can my support obligation be reduced?

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• A: It depends on state law. Some states have child support guidelines that automatically take into account the amount of time each parent spends with the child under the terms of a shared custody agreement. Other states allow a "deviation" from child support calculations to achieve fair child support orders in situations like yours. Still other states don't consider the amount of time the parents spend with the child.

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Q: I was recently in an accident and am receiving disability benefits. Can the support order be reduced or terminated?

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• A: Child support is generally calculated using both parents' current income figures. Most states allow child support to be modified when there is a "change in circumstances." Certainly, a drastic change in income of either or both parents is a "change in circumstances" and a reason to modify child support.

  But child support isn't necessarily recalculated using the parents' income figures at the time of the modification. Most states allow courts to "impute" (add) potential income to "underemployed" or "voluntarily unemployed" parents when calculating or recalculating the amount of child support. "Underemployed" means that the parent isn't working to his or her earning capacity. The court can "impute" "potential income" to the underemployed parent's income when determining that parent's gross income for the child support calculation. "Potential income" is income that the court finds the parent would have earned if fully employed, as determined from:

  • The parent's employment potential and probable earnings based on the parent's recent work history
  • The parent's occupational qualifications
  • The prevailing job opportunities and salary levels in the community where the parent lives.

  The concept of "potential income" prevents parents obligated to pay child support from "voluntarily" reducing their income and thus lowering their child support obligation.

  Some state courts have ruled that being disabled doesn't mean that a person is unable to earn any income. The court reasoned that being disabled for the purpose of receiving social security disability benefits only means that a person is unable to meet the government's "minimum income level." So a certain income level may be imputed to a parent receiving social security disability benefits.

  If these disability benefits are coming through Social Security, your children may qualify for their own benefit check as your dependents.

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Q: I'll be moving to another state soon, with permission from my ex. The cost of living is higher in the new location. Will this entitle me to an increase in child support?

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• A: Depending on the state in which your child support order was issued, and depending on the change in your income, you may have cause to modify the child support figure. If the court were to modify the amount of child support because of an increase in living expenses, it would most likely have to find that the modification is in the best interests of your children. Keep in mind, though, that any visitation expenses for your ex-husband will be increased due to travel and so forth, and may offset any increase in living expenses on your part.

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Q: I'm considering retiring early because of some health problems. Can I get a reduction or termination in my support payment?

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• A: You most likely won't be able to terminate the payments, and you possibly won't be able to reduce them. Many states will consider this a voluntary reduction in employment, and hold you to the prior support amount. You should certainly consult an attorney however, because health problems just might be good enough to qualify for a modification, depending on state law.

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Q: I'm obligated to pay support but want to start college. I won't have much income and can't pay support from my student loans. Can I reduce the support order?

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• A: In most states, courts have ruled that full-time education restricting the ability to work isn't a reason to reduce child support. The reasoning seems to be that the entire burden of supporting the child shouldn't be placed on the other parent while one parent attends school.

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Q: I've been paying support according to a support order for five years. I have reason to believe the child isn't mine. If I get DNA tests and the child isn't mine, what will happen?

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• A: In many states, once you're declared the legal father of a child, that's it. Such an order can't be contested later on. In other states, the declaration might be subject to challenge under very limited circumstances.

  Even if you can get the court to reopen the case, recovering the support you've previously paid is a longshot. First, it's entirely likely the mother doesn't have the money. Second, the right to demand DNA testing was yours in the first place, so there isn't a tremendous argument for "rewarding" you for failing to assert your rights in the beginning.

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Q: My income has increased since the support order was created. Can I be penalized for not paying more because of my increased income?

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• A: In most situations, child support increases are only retroactive to the date of the filing of a motion to modify child support. However, many courts and child support collection agencies are requiring people who pay child support to report their income on a regular basis in order to make for smooth modification proceedings. If your orders do that, and you failed to do so, you might have some problems. If your orders don't require such, normally there is no obligation to pay anything more than what was ordered.

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Q: My minor son recently got married. Do I still have to pay support for him?

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• A: The answer to your question will depend on where your son lives and what state's laws apply. In a few states, the noncustodial parent must continue to pay child support for a minor son even though he's married. In other states, marriage will "emancipate" the child and allow for termination of support. In still other states, marriage might only emancipate the child to the extent the child is able to provide for himself, in which case support might be reduced, but not eliminated.

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Q: My son is now in college and has a scholarship that pays his tuition, room and board. I agreed to pay part of his higher education. Do I still have to pay for any additional expenses he has?

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• A: If there are additional expenses that can be characterized as "college expenses," it is quite possible you'll need to pay for them.

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Q: Since our divorce, my ex-husband has been promoted several times in his job. His income has increased dramatically. Can I ask for an increase in his support payments?

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• A: Most states have a two-pronged test for determining whether child support should be increased. The parent requesting the increase must show that:
  • The person paying support has an increased income, and
  • The child has increased needs

  There are states, however, that allow an increase based just on an increase in ability to pay. In many states, the person requesting an increase must show there's been a "change in circumstances." In Ohio, the usual method is to show that the child support amount calculated is 10 percent greater than the amount paid, or that there is a change in the needs of the child.

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Q: When should a child support order be modified?

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• A: One of the most frequent mistakes made by people paying child support is to rely on the oral assurance of the custodial parent that "you don't have to worry about the child support order, just pay me (some lesser amount). I'll get by." Every month you pay less than the court has ordered you to pay, it's as if you're handing the custodial parent a hammer that he or she can hit you with whenever he or she gets angry. Don't go there. Whenever the child support needs to be reduced, you need to change the child support order.

  On the other hand, if you and your ex-spouse have agreed that you'll pay more than the court order provides, you don't have to be in a hurry to change the order. If the non-custodial parent agrees to an amount in excess of the order and then refuses to pay it, the custodial parent can always file then to change the order.