Modiciation of Child Support

Modification of Child Support

The obligation to pay child support is a fact of post-divorce life in Florida.  In a divorce proceeding, the courts will put an Order of Child Support in place to ensure the children are taken care of financially.  This obligation cannot be waived or contracted around, unlike other some other rights and obligations.

Another fact of life is that sometimes, circumstances in one’s life change, and there is a valid reason for modifying a child support order that a court put in place at the time of the divorce.  In these times of companies downsizing or moving, and in a much more tentative job market, the job security of several generations ago does not exist.  Change can and does occur frequently.

When financial circumstances change, the Florida courts do have a method of adapting to that change.  Keep in mind that the court that initially entering the child support order retains jurisdiction for any modifications as long as the state remains the residence of one of the parties or the children.

What Circumstances Allow for Modifications?

According to Florida statutes, the court must consider the financial circumstances of both parents when it makes a child support award.  They must also only consider the legal earning capacity of the parent, not some amount that might be earned through illegal activity.

Some of the changes in circumstances that the courts will consider are:

  • A significant decrease in income or financial position of either party, from such things as involuntary loss of job, long term medical issues or disability;
  • A significant increase in income or financial position of either party.  If the nonpaying spouse experiences this increase, it will offset the child support obligation, decreasing the paying spouse’s amount due;
  • When the child, or a child, reaches the age of majority (18 or 19, depending on the child’s high school status);
  • When health insurance becomes available and now the cost of insurance is an additional expense;
  • There is a decrease in the child care expenses, such as when day care is no longer required;
  • When the placement of the child or children has changed.

What Circumstances Do NOT Allow for Modifications?

Not every change in circumstances is a basis for a modification.  If the paying spouse remarries and their new spouse brings children to the marriage, even though there may be greater financial pressure to support both families, it is not sufficient cause for reconsideration of the child support award.

If either parent remarries, and their financial circumstances improve, that is not in and of itself reason for modification.  The court looks at the individual financial position of the biological parents, not their new spouses.   There is a caveat here – if the new spouse’s financial position is such that a paying parent voluntarily quits their job or reduces hours, then the court may impute income to that parent at an amount they are capable of making.  This situation gets quite complex; expert legal advice will guide you through these circumstances.

Also, if the change in circumstances results from voluntarily leaving their job, income may be imputed to that party at the level that they are capable of earning.  You may find yourself out of a job and still obligated to pay the same amount (or, in some cases, even more!)  The courts really disfavor parents who intentionally impoverish themselves to get out of paying child support.  Be very careful about this issue.

The Change in Circumstances Must Be Substantial

Florida statute dictates that any change in circumstances for the purposes of considering a modification of child support must be substantial.  Section 61.30 (1)(b) says  “….the difference between the existing monthly obligation and the amount provided for under the guidelines shall be at least 15 percent or $50, whichever amount is greater, before the court may find that the guidelines provide a substantial change in circumstances.”

This “substantial change in circumstances” requirement acts as a gatekeeper for frivolous or insignificant modification petitions.  The courts do not want parents back in court for modifications for yearly raises (again, unless substantial!) or petitions based on pettiness.

Also, generally, one-time changes in financial position such as prizes, one-time bonuses or awards are not considered.  (Interest or investment income from such things may be considered, though!) The change in circumstances should be ongoing, and one not considered in the original order or any modifications of the original order.

Both Parents Entitled to Petition for Modification

This concept of modification of child support is meant to benefit both sides of the parental equation.  It is based on fairness to the parents, and the best interest of the child.  If there has been a downturn in the financial health of a paying parent, that parent may request relief in the amount of child support due.  If there has been an upturn in financial health of either parent, the other one may request of review and recalculation of the support equation.

Automatic Reduction in Child Support

Florida statutes now require that when the original support order is entered, there is language included in the order that the support ends when the child is emancipated, either when they turn18 (sometimes 19, depending on the child’s high school status), join the military, marry or are otherwise emancipated.

For example, if there are three children, the calculation of support in the order specifies what the child support will be once the oldest child emancipates.  It also sets out the amount for when the middle child emancipates and of course when the youngest emancipates, the child support obligation ends completely.  (The exception to this is if there is a special needs child who may require ongoing support.)

The reason for this statute is to eliminate the need to file a petition for modification each time a child is emancipated.  It also follows that any order for modification should include a modified schedule of termination and adjustment.

Don’t Sit on Your Rights to Modification!

Interestingly, many people are not aware that they are able to modify the child support awards.  They think the amount is chiseled in stone, and will never change regardless of change in circumstances.

If it has been some time since the original order of child support was entered, and you know of substantially changed circumstances, you may want to review the situation with an experienced family law attorney.  They will be able to determine whether your case is valid for a petition for modification and will be able to guide you through the process.