Child Support Survival Guide: Modifying Existing Support Orders
You don't have to live with outdated terms.
Because child support orders commonly last for many years, it is
expected that the physical and financial circumstances of both parents and the children will change. Arrangements between the parents for the custody change; sometimes a parent loses or changes employment or becomes disabled, and occasionally, the financial condition of one parent improves dramatically. All of these circumstances can justify a change in the child support order.
Unfortunately, many parents involved in child support cases do not know it is possible to have their child support orders modified to reflect these changes. Far too many custodial parents live with outdated orders that do not reflect the substantial improvement in the ability of the noncustodial parent to pay child support. Far too many noncustodial parents who have lost their employment, become incarcerated or disabled, or become otherwise unable to pay the child support that was originally ordered, have never obtained modifications of their support orders. These noncustodial parents, who have either neglected to request a modification or who have not known of their right to request one, have accumulated staggering amounts of arrearages that should not have accrued, because they were unable to pay the amount that was ordered.
A parent whose current child support order is at least three years old, who experiences a change in circumstances, or who becomes aware of a change of circumstances in the other parent's life that might cause a beneficial modification of the support order, should call or write the CSE agency to request a formal modification review. Prior to 1988, modifications of child support orders handled by CSE agencies were conducted on a sporadic case-by-case basis. In 1988 Congress enacted a law that requires all CSE agencies to review the support order in every AFDC case to see if a modification is justified. The result of this law was that thousands of outdated orders were modified to bring the level of support into line with present-day costs of living and current child support guidelines.
The standard time for a CSE agency to conduct a modification review of a child support order is every three years, but a parent who believes his or her personal situation or the circumstances of the other parent have changed may request a modification review without waiting the three-year period. The agency conducts a modification review, usually without any charge to either parent, and handles all of the paperwork attendant to the review. However, some states do charge a reasonable fee for modifications.
Once a review is requested, the agency is obliged to modify the order without regard to which parent has requested it. A modification review can produce a result very different than expected by the parent who requested the review. For example, if the noncustodial parent has requested a review thinking that the amount of child support should be reduced, and the review shows that the amount should be increased, the CSE must move to increase the amount. Likewise, a custodial parent who requests a review in the belief that the order will be increased can find the level of child support decreased. Occasionally, the review determines that a modification is not warranted, and the existing judgment remains in effect.
Financial errors of the noncustodial parent
Many noncustodial parents become financially unable to comply with a child support order when they are incarcerated. Some incarcerated noncustodial parents do not care about their child support orders; other incarcerated noncustodial parents do care about their child support orders, but mistakenly believe that their incarceration automatically reduces or abates their duty to provide child support, without the need to obtain a court order terminating or reducing the obligation while they are incarcerated. No change of circumstance abates, reduces, or increases a court order for child support unless another court order changes the first one.
The incarcerated noncustodial parent who ignores the child support order or believes that no action is needed to modify the order based on his or her incarceration discovers too late (usually when he or she becomes reemployed after release from incarceration) that child support arrearages accumulated during the incarceration. Arrearages that have accumulated cannot be erased, even when the noncustodial parent presents evidence that shows his or her incarceration constituted a lack of ability to comply with the support order. These parents frequently find that their reemployment is accompanied by a 50 percent garnishment of their paychecks to liquidate the arrearages they accumulated while in custody. It is not uncommon for incarcerated noncustodial parents to accumulate arrearages of $25,000 or more because they failed to seek a modification of the order. That oversight can become financially devastating to the noncustodial parent upon release.
This same situation occurs when noncustodial parents have lost their employment and their incomes. Unless these parents petition the court for a modification of the order to reflect their reduced earnings and reduced abilities to pay, their arrearages accumulate and they can be labeled as "deadbeats."
Occasionally, the CSE agency obtains a support order by a default judgment, because it does not know the noncustodial parent is truly without income. The truly indigent noncustodial parent who learns that a support order has been entered by means of a default judgment should immediately contact the CSE agency to request a modification of the order. Failure to act causes the indigent noncustodial parent to accumulate debt that cannot be forgiven.
A noncustodial parent who becomes delinquent in paying child support pursuant to a court order becomes subject to all of the severe enforcement actions discussed in Enforcement of Current Child Support Orders. The enforcement measures used by CSE agencies to collect delinquent support payments often make a bad situation worse. The parent might have 50 percent of his or her wages garnished, lose his or her driver's license, be unable to secure credit or loans, and incur greater debt from the interest that accumulates on child support arrearages. Any parent whose court order "reserves" child support is subject to a modification review without notice upon verification of employment.
Review requests by custodial parents
A child support order obtained 10 years earlier might have no relationship to the noncustodial parent's present ability to pay support, because the noncustodial parent's income could have increased substantially during that period. Even though the noncustodial parent may have the ability to pay a larger amount of support, he or she does not owe any support that exceeds the amount in the support order. A custodial parent must request a modification of an outdated support order if he or she believes that more child support is justified. Just as a support order cannot be retroactively modified to forgive arrearages that have accumulated, a support order cannot be retroactively modified to create arrearages based on a higher ability to pay.
The agency usually mails forms to the parent who requests a modification review. These forms require the parent to provide information on his or her income and expenses. The agency normally requires the requesting parent to submit copies of current pay stubs, tax returns, and verification of childcare expenses, if applicable. When the agency has received the completed income and expense information from the requesting parent, it will contact the other parent to obtain the same information.
A custodial parent currently receiving AFDC is not required to complete an income and expense form, though he or she may request a review for modification of the child support order. If the noncustodial parent has experienced a substantial increase in income, the modification of the support order might enable the custodial parent to stop receiving welfare.
The CSE agency normally allows up to 30 days for the parent who has requested a modification review to return the income and expense forms, and usually terminates the review if the parent who requested it fails to return the completed income and expense forms.
A parent who experiences difficulties in completing the income and expense forms or is unable to understand portions of the forms, and is unable to talk with someone at the CSE agency, should complete as much as possible and return the forms and pay stubs or other forms of income verification. If the caseworker wants additional information, he or she will contact the requesting parent. The sooner the forms are returned to the CSE agency, the sooner the agency can review the case for a modification.
The parent who has not requested the review does not normally benefit by failing to cooperate. The CSE agency usually can obtain that parent's gross income information from governmental databases. The income and expense declaration gives him or her an opportunity to inform the agency and the court of additional facts that can cause a reduction in that parent's income for determining a child support order.
If the nonrequesting parent does not cooperate with the agency, the agency either conducts a modification review without the non-requesting parent's information, or requests that the court issue a subpoena ordering the nonrequesting parent to appear with the requested information.
When the custodial parent has requested that a review be conducted for a possible upward modification of the support order, and has submitted income and expense declaration forms to the CSE agency, the agency notifies the noncustodial parent that a modification review will be conducted, and requests that the noncustodial parent also complete and return an income and expense declaration. Many noncustodial parents do not return their income and expense declarations to the agency. They believe that if they fail to return the forms or provide information, no review will take place. Unfortunately for these parents, all that is required is that both parents be given an opportunity to submit information. When the noncustodial parent does not respond, the review process proceeds without that parent's input.
The CSE agency usually allows the responding parent 30 days to send his or her financial information. Once the agency has obtained all of the documentation voluntarily submitted by both parents, and has gathered information on the parents' incomes from state and federal databases, the staff conducts a review of the case. The agency follows state-established support guidelines (discussed in Child Support Guidelines) to determine if a modification increasing (upward modification) or decreasing (downward modification) the child support order is warranted.
If a modification of the support order is warranted, the nonrequesting parent can be given an opportunity to voluntarily stipulate to a modification of the support order. If the case involves a custodial parent receiving AFDC, that parent's agreement to a modification of the support order is not needed. In an AFDC case, the CSE agency makes the decision for the custodial parent on the appropriate amount of the order.
If the custodial parent is not receiving welfare (a nonaid case), a stipulated modification requires the agreement of both parents. If both parents in a nonaid case do not agree to stipulate to a modification, or if the noncustodial parent in an aid case does not stipulate to a modification, the agency files with the court an appropriate petition-a motion for modification, an order to show cause for modification, or some similar legal action-requesting that the court order a modification of the support order. The CSE agency must serve the modification petition or order to show cause upon the noncustodial parent.
Once the notice of motion or order to show cause has been served on the noncustodial parent, the court assigns a date that it will hear the case, and the noncustodial parent is notified of the date of the hearing. The CSE agency commonly sends the noncustodial parent a written calculation showing the requested modified child support amount, and subpoenas the nonaid custodial parent to appear in court on the date for hearing the petition. The agency does not ordinarily require the AFDC custodial parent to attend the modification hearing, but he or she is welcome to attend. At any time prior to the hearing date, the noncustodial parent may contact the agency to sign a stipulated modification of the court order. If a support order is modified by stipulation, a court appearance is usually not required.
Parents in a nonaid case are not required to follow the state's support guidelines. If parents begin to negotiate the level of a support order in a nonaid case, the CSE agency can function as an intermediary between them. Negotiated and mediated support orders can be established by the signatures of both parents, and this can be accomplished through the mail. The advantage to parents who are able to agree on a modification is that they can avoid the necessity of a court appearance and expedite the modification process.
The noncustodial parent in an AFDC case
The noncustodial parent in a case in which the custodial parent is receiving AFDC may request a review of the case for a possible downward modification. If a downward modification is justified, it is initiated by the signature of the noncustodial parent to a stipulated order. When the noncustodial parent signs the stipulated order modifying child support in an AFDC case, the agency files the stipulated order with the court, and when approved by the judge or administrative officer, the new amount becomes effective. No court appearance is necessary. In fact, this process can be handled by mail.
If the noncustodial parent has requested a modification review and disagrees with the decision of the CSE agency on that review, the noncustodial parent can file with the court a petition or request for an order to show cause to modify the support order. The agency then must respond to the petition and the court resolves the issue.
The noncustodial parent in a nonaid case
If a noncustodial parent in a nonaid case requests a review for a downward modification, the CSE agency must obtain financial information from the custodial parent to determine whether a modification is warranted. Should the custodial parent refuse to provide the information, the CSE agency requests the court to fix a date for a hearing on the requested modification, and usually issues a subpoena requiring the custodial parent to attend the hearing and to produce the requested information.
Every parent with a child support order is entitled to request that the agency handling the case review the court order for modification. When both parents cooperate with the agency, the process is simple and expeditious, but when the agency must petition the court to resolve a dispute over a modification, the process can take many months.
Excerpted from Child Support Survival Guide: How to Get Results Through Child Support Enforcement Agencies. Copyright 1997 by Bonnie M. White and L. Douglas Pipes. Published by arrangement with Career Press.
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