Modification of child support and alimony obligations is a substantial part of my practice. Support judgments can last decades, so it not uncommon for a substantial change in circumstance to occur. When a change of circumstance occurs, it is important to act quickly because courts will typically not modify the support obligation prior to the filing of a supplemental petition to modify support. For example, if you are required to pay support and are laid off from a job, it is important to file a supplemental petition quickly to avoid being liable for the full amount of the support obligation while you have an inability to pay.
Process to Modify Support
The grounds to modify alimony and child support are similar, with a few differences; therefore, the foregoing summary is meant to provide a general idea about the process, not specific information related to your case.
To begin the process of modifying child support or alimony, I work with clients to draft a document called a “supplemental petition” which sets forth the grounds for modification. To obtain a modification of support the client must prove the following:
- Substantial and Material Change: The change in circumstance must be substantial. For example, a few dollars increase or decrease in income may not warrant a modification; whereas an involuntary job loss or large promotion would likely warrant a modification of support.
- The substantial change in circumstance must not be anticipated at the time of the final judgment. For example, if a party knew at the time of the final judgment that their job assignment may reduce his or her income soon after the judgment, the party will not likely be able to modify the support obligation because they knew about the change at the time of the final judgment.
- Involuntary: To sustain a modification of support, the petitioner must show that the change of circumstances warranting a downward modification of support was involuntary. For example, a person paying a support obligation cannot voluntarily quit a higher paying job for a lower paying job and expect the court to modify support. An exception may be leaving a job to pursue higher education, but the person seeking the modification would need to show that the education would lead to greater income that would benefit the child(ren). If you are thinking of seeking a modification to pursue higher education it is important to consult with an attorney BEFORE making the change, because determining the availability of the exception requires a very fact intensive analysis.
- Permanent Change: To sustain a permanent modification of support, the petitioner seeking a modification must demonstrate to the court that the change is permanent. Generally, to be considered a permanent change, the circumstance must last at least a year. For example, a temporary furlough from a job would not support a permanent modification. When a person experiences a job loss, they do not know how long it will last; therefore, it may be difficult to know if it is possible to obtain an equivalent job within a year. In that situation, it is wise to immediately file a supplemental petition because the court can consider a temporary modification or abatement of support based on a temporary reduction.
Modification of support is a very fact-driven analysis. Facts need to be compared to both case law and the statutory framework to determine if solid grounds exist to modify support. If a supplemental petition to modify support is not plead properly, it may be subject to a motion to dismiss or ultimately fail at a final hearing. If you are contemplating modification of support, please call to schedule a consultation. I welcome the opportunity to discuss your case.