After a divorce with children, either parent can ask the court to modify a child support order. Whether the court will actually grant your request is another matter. Child support laws vary by state, but most courts need a compelling reason to change an existing order.
You Must Prove a Substantial Change of Circumstances
When you ask for a modification of child support (an increase or decrease), you must prove that after the original order was issued, a substantial change of circumstances occurred, which makes the amount you're paying or receiving inappropriate. What courts consider "substantial" depends on state law and the facts of each case. However, any of the following may provide a basis for modification:
- a change in the child's medical needs
- a paying parent's illness or disability
- a substantial increase or decrease in either parent's income, and
- a change in the child's residence, for example, if the child now resides with the paying parent.
Income Is a Factor
Since child support is based primarily on parental income, a change in either parent's earnings may provide a good reason to modify support. For example, if you agreed to a certain amount of child support based on your 2013 income, but you've since been demoted or laid off, you may be able to decrease your child support payments. And if the paying parent starts earning more than when the support order was first issued, a court might modify the support amount to reflect the additional income.
But the amount of lost or increased income must be significant. In some states, the change in income must affect child support payments by a minimum percentage before courts will modify support orders. In New York, for example, courts require a 15% increase or decrease in either parent’s income.
Changes in income can't be voluntary. You can't simply quit your job and expect to pay less or receive more child support as a result. Paying parents that intentionally leave a job in order to try and reduce or avoid child support may be faced with an imputation of income order, which is where a court will calculate child support based on what the parent was earning before the intentional reduction in income.
In any case, one parent must go back to court to request a modification: It won't happen automatically. And you can't simply stop making payments, even if you think the current amount is unfair or incorrect. If you fail to make payments on time, you could be held in contempt of court or subject to an enforcement action, fines, and even jail time for disobeying the existing child support order.
Time Limits May Apply
The parent requesting the change to support must go to court and file a “petition” (legal paperwork). Some state courts limit how often parents can request changes to child support. In New York, parents may request a child support modification only if three years have passed since the last order was issued
But, depending on where you live, you may not need to wait as long as three years for a court to consider your request. You'll need to speak to a local family law attorney for specific information about your state's laws.
Turn Your Child Support Modification Agreement Into a Court Order
If you believe there's a good basis for modifying support, you may want to start by talking to your co-parent to see if you can agree on a new amount. If you and your child's other parent can reach a compromise, be sure to get the agreement in writing. But don't stop there: You should take your child support modification agreement to court, and ask the judge to issue a new order reflecting the agreed-upon amount. Generally, courts will approve child support agreements if they meet the child's best interests.
If you fail to get a new support order, you may not be able to enforce your written agreement. In many states, courts won't enforce or modify written child support agreements, so it's important to have the agreement incorporated into an official order. This way, if the other parent fails to make payments, you can ask a court for help.
A Family Law Lawyer Can Help
The law surrounding child support modification is complicated. While this article provides a brief, general introduction to the topic, you should contact a local family law lawyer with specific questions.
Questions for Your Attorney
- My child's other parent received a raise, can I seek an increase (or decrease) in child support?
- How long do I have to wait before I can go to court and ask for a modification?
- What will I need to bring to court to support my request?
- How much will child support increase (or decrease)?