If you are a parent who is divorcing or about to divorce, nothing is more important than your children, their futures, and their well-being. After a divorce is final in the state of California, both parents still have an equal obligation to support their minor child or children. Divorcing spouses often agree voluntarily upon how much the non-custodial parent should pay the custodial parent for child support, and California family court judges will usually go along with a voluntary arrangement.
But when child support becomes a matter of dispute between the divorcing spouses, a judge will make the child support decision according to what the court deems is in “the best interests” of the child. California has established formal guidelines to help judges determine the proper amount of child support that should be given to a custodial parent by a non-custodial parent subsequent to a divorce. A California judge will use those guidelines to impose a child support order based on each parent’s assets, income, and the amount of time the child spends with each parent. The best interests of the child will always be a California court’s highest priority.
But even when both parents or their attorneys are able to resolve the child support issue – or after the court renders a ruling – a change in circumstances at a later date may require a modification of the child support agreement or court order. Child support disputes in California are not always concluded simply because a divorce has been finalized and the child support amount has been initially determined.
FOR WHAT REASONS CAN A CHILD SUPPORT ORDER BE MODIFIED?
Whether a child support arrangement was voluntary or imposed, sometimes the support arrangement must be changed. Relocations, new jobs, new spouses, injuries, and illnesses are some of the reasons why a child support order may need to be modified. Almost everyone’s life changes at some point, so modifications of child support orders are actually quite common in California.
According to Orange County family law attorney Brian Bayati, “Child support can be a tricky subject for many people; but, sometimes, it is necessary for one or both parties to revisit the payment amount to ensure they achieve the financial circumstance within their child’s/children’s best interest.” In court, a parent seeking a child support order modification will have to prove to the judge that there has been a change in circumstances that makes the current child support order unworkable or obsolete. There are a number of reasons why a child support order might need to be modified. Some of these reasons are:
- One or both parents have become unemployed (or in some cases, employed).
- One or both parents have been incarcerated.
- The income of one or both parents has changed.
- One parent has had a new child with another partner.
- The amount of time the child spends with each parent has substantially changed.
- The child’s educational, medical, or child care needs may have changed.
- The factors that are used to calculate child support have been changed.
Divorced parents should remember that they cannot simply make a new child support arrangement on their own without notifying the court. Unless and until the judge signs a new court order, the existing child support order does not change. Even if parents have a verbal agreement to change the child support amount, you need to protect yourself. Contact your family law attorney, put the agreement in writing, and have a judge sign it.
ARE CHILD SUPPORT ORDER MODIFICATIONS RETROACTIVE?
Parents in California should know that child support order modifications are not retroactive. For example, if your ex-spouse’s income increases significantly while you are paying child support, you can probably have your support order modified to allow you to make lower monthly payments. But if you wait to act after your ex-spouse’s income increases, you cannot be reimbursed for any period prior to the actual date of the modification.
Child support payments are temporarily suspended – after the first ninety days – when the paying parent is sent to jail or prison or otherwise involuntarily institutionalized for more than ninety days. When the parent is released from jail or institutionalization, child support payments start again at the same amount. However, there are three exceptions to the rule suspending payments during a period of jail or institutionalization. Payments will not be suspended if:
- Even while not working, you still have the financial ability to pay child support.
- You were jailed because of domestic violence against the ex-spouse or the child.
- You were sent to jail because you failed to pay child support.
Some parents sometimes think they should ask the court to modify a child support order because they think the amount they pay will go down, but when they get to court, the amount they have to pay actually goes up. It happens the other way as well, when a custodial parent seeks more child support but ends up receiving less. In Southern California, before you take any legal action regarding a child support modification, it is imperative to have a discussion with an experienced Orange County family law attorney. A good family lawyer should be able to tell you in advance how your request for a child support order modification will be handled by the court.
WHAT CAN YOU DO IF YOUR EX FAILS TO PAY CHILD SUPPORT?
If your former spouse isn’t making the child support payments that he or she owes, you may have to return to the courtroom. You and your attorney will have to show proof to the court that your ex has not made payments (or has not made them fully or in a timely manner). You may also have to explain to a judge how your ex-spouse’s failure to pay is causing difficulty for you and your child. If child support payments continue to be delinquent, you may have to return to the court to seek enforcement.
Parents should also understand that before a California judge will change a child support order, there must be not only a substantial change of circumstances, but there must also be irrefutable evidence that a modification is in the best interests of the child. This state’s legislators and judges understand that everyone’s situation changes and that child support orders must routinely be changed. Still, California judges will always make a child’s best long-term interests the court’s highest priority, and judges will not approve a change of an existing child support order without considerable evidence that the change is in the child’s best interests.