When do I file a motion to modify child support? This is a common question that we get as family law attorneys, especially since the financial needs of a child change over time and so does your income. Consider the following ground rules before filing your motion.
In order to request assistance from the Court to modify your child support obligation, it must be codified in a court order. If you have agreed to child support in an out-of-court agreement or a verbal agreement, the process is different. But, if your child support is in a written and filed Court Order, signed by a Judge, you may be able to file a motion to modify with the Court.
Consider why you want to modify the child support order. There are limited circumstances that allow for a modification of child support. Generally, there has to be a substantial change of financial circumstances and/or the current order must be at least three years’ old.
If your current order is at least three years’ old, then you may be able to modify if the new child support amount will increase or decrease at least 15% from the current, court-ordered amount. Despite the order being at least three years’ old, if the difference between the new child support amount and the current child support amount is less than 15%, the Judge will likely not modify the child support amount. Working with an attorney to go over the different possibilities can help determine whether you should file the motion to modify child support after the three year mark.
On the other hand, if there has been a substantial change of financial circumstances, you may be able to proceed with a modification. Those changes of circumstances are limited but include a number of different issues that arise. The Court can consider an involuntary decrease in income by either parent (such as being fired from a job due to the employer or company downsizing), a change in the parenting schedule (especially if the paying parent is now taking care of the children for the majority of the overnights in a year), a change in daycare or child care expenses, and a modified health care coverage and payment premium for the child(ren). Another clear substantial change is when a child ages, since a parent’s child support obligation terminates when a child reaches the age of 18 or graduates from high school, whichever last occurs, or reaches age 20 regardless of whether the child graduated.
Important note: you cannot modify child support solely because the payor’s income has only increased since entry of the previous Order. You will want to tie into the request at least one of the additional factors mentioned in the preceding paragraphs. You also cannot modify based solely on a voluntary reduction of income of either parent. Filing a petition for Chapter 11 bankruptcy also does not qualify as a substantial change.
To help you navigate these complexities, an experienced family law attorney in child support matters can assist you with navigating whether it makes sense to file a motion to modify your child support order.
If you or somebody you know is navigating Child Support issues, our team at Modern Legal is here to help.
Please note: these educational materials are based on North Carolina law where my legal practice is based. While the insights may have wide applicability, readers should consult with an attorney regarding the specific laws in their state or country.
Written by: Deborah L. Dilman
Prior to practicing family law, I worked for many years in the financial industry. While I enjoyed this career in business, I wanted to do more – I wanted to make an impact on the lives of my community that would empower my clients throughout the test of time. I wanted to work to make lives better and inspire people to make important decisions for themselves and for their families. I completed my undergraduate degree in Business at Queens University in Charlotte, North Carolina. Eighteen years later (2003) I received my law degree from Syracuse University College of Law. And, for over fifteen years, I have represented children through the Council For Children’s Rights Custody Advocacy Program.
