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| Modifying and Stopping Child Support Payments |
A request to modify child support orders can be repeatedly made as long as a substantial or material change of financial circumstances can be shown. The modification can be either temporary or permanent, depending upon the nature of the changed circumstance.
Parental Obligation of Support
Generally, both parents' are obligated to support their child(ren) until they reach the legal age of majority, which is typically 18 years of age. There are circumstances when the support obligation ends early, including: a child entering the Armed Services, a child's marriage, a child's graduation from post-secondary education or graduate school, or any event by which a court determines that a child is or is expected to be self-supporting. Other special circumstances that may cease the support obligation include the adoption of the child, the termination of parental rights, or the parent's death.
Modification
Federal legislation has limited judicial discretion (the sound judgment of the court) in deviating from child support guidelines; however, courts have retained the power to modify child support awards upon a showing of substantial change of financial circumstances of either the custodial (one who has physical custody) or the non-custodial (one who does not have physical custody) parent. Other material changes could be the result of a new situation for the child(ren), including large medical expenses, need for special education, or other unexpected expenses.
Child support payments can be modified by stipulation (an agreement in writing by both parties) between the parents if child support guidelines have been accounted for and followed. Modification can also be noticed by court hearing.
Permanent or Temporary?
Depending upon the circumstances, a modification of child support may be temporary or permanent. Temporary modification orders are awarded in circumstances including a child's medical emergency, the non-custodial parent's temporary inability to pay due to illness or additional financial burden brought on by an unexpected emergency, or the temporary economic or medical hardship of the custodial parent.
A permanent modification may be awarded when a circumstance has a long-term effect on one of the parties, including: the receipt of additional income from either parent remarrying, changes in child support laws, change in jobs of either parent, increases in the cost of living, the disability of either parent, and the needs of the child(ren). A permanent modification order will remain in effect until support is no longer required or the order is again modified at a later time.
Cost of Living Adjustment (COLA) Clause
A COLA clause in a child support order requires child support payments to increase annually at an equal rate to the annual cost of living increase. The cost of living is determined by an established economic indicator (an example is the Consumer Price Index). Courts will sometimes include COLA clauses in child support orders to eliminate the need for any modification requests based solely on cost of living increases.
In states that use COLA clauses, parents have the opportunity to also request a review pursuant to the support guidelines. However, other states have found COLA clauses to be void against public policy (community common sense applied throughout the state to matters of public morals, health, safety, and welfare) because they are tied to national inflation rates and economic indicators, which might not accurately reflect a non-custodial parent's changes in income and ability to pay.
Frequency of Modification Request
State law usually does not impose restrictions on the frequency of modification requests if made due to an alleged material change in facts or circumstances since the date of the last modification order.
There is, however, no retroactive modification, which means that a support order cannot be modified prior to the date of the filing of the request for modification. Thus, in order to avoid potentially large arrearages (overdue and unpaid money), it is important for a non-custodial parent to take timely action in seeking modification.
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