When you lose your job, your child support order doesn’t just go away. You still owe the unpaid amount in arrears, which can’t be discharged in bankruptcy and usually can’t be reduced retroactively. But the court can modify your support obligation when you experience a change in your financial situation. If you are unable to pay the current child support amount due to job loss, you may be able to secure a child support modification, which is a particular type of court order.
Temporary or Permanent?
Parents can agree on a modification. If an agreement is reached between the two parents, it must be put in writing and signed by a judge. If you and the child’s other parent can’t agree on child support modification, you have to request a hearing in front of a judge where you will both be allowed to make arguments about your proposed modification of child support.
A modification may be either temporary or permanent, depending on the particular circumstances underlying the request. If the request is due to job loss, the modification will likely be temporary.
To get a child support modification, you need to show the court that you have experienced a substantial change in circumstances. If your significant change in circumstances is that you lost your job or earn less money, make a serious effort to find new employment and document your attempts.
Job Loss May Not Be Enough
But remember, job loss might not by itself be sufficient for a modification. This is because child support can be collected from a variety of sources, including: severance pay, unemployment payments, disability, workers’ compensation benefits, and a number of other sources of money.
You should file your child support modification request with the court which issued the child support order currently in place. The papers you file with the court also need to be served on the other parent. While you go through the process of getting a modified child support order, it’s important to try to keep up with your current child support obligations as best you can. It will show the court that your request for a modification is truly due to changed circumstances and isn’t an attempt to dodge your child support obligations. Demonstrating good faith to the court is essential.
Can I Change a Child Support Order After Changing Jobs?
If you’re a non-custodial parent and have changed jobs, the amount of child support you are required to pay does not automatically change to reflect your new salary. However, you may petition the court to change a child support order after transitioning to a new job, particularly if you can no longer afford the payments due to a decrease in pay.
Similarly, the custodial parent may seek modification for additional child support if the non-custodial parent earns substantially higher wages from a new job.
Changing the amount or terms of court-ordered child support is referred to as “child support modification.” Courts consider a variety of facts before approving a modification request and typically decide whether the new job (or other determining factors) can be considered a “substantial change in circumstances.” Furthermore, parents who agree on the terms of a child support modification may do so with a judge’s approval.
Reasons to Modify a Child Support Order
One or both parents may seek to change a child support order after changing jobs or otherwise experiencing a change in income. A modification may be either temporary or permanent, depending on the particular circumstances underlying the request. A court may temporarily modify an order of child support to accommodate a recipient child’s medical emergency or a temporary financial hardship of either one of the parents.
Whatever the reason for modification, the court must always consider the needs of the child. Reasons for modifying a child support order include the following:
• A significant change in the child’s needs;
• Increased cost of living;
• Either parent has been incarcerated;
• Either parent becomes unemployed or experiences a change in income;
• Family income increases significantly after either parent remarries;
• A parent becomes disabled, decreasing his or her employment prospects, or otherwise constraining resources; or
• There is a change in child support laws.
How to Modify a Child Support Order
If you have a new job that pays less than what you earned when child support was ordered, and are unable to make a payment, it’s important to act as quickly as possible. Child support modifications are not retroactive, which means that you’re responsible for the originally ordered amount until a modification is approved by the court. Even if your spouse verbally agrees to a lower amount or different terms, it won’t carry the force of law unless the agreement is in writing, signed by both parties, and approved by the court.
Requests for child support modification are handled by state courts, and the process is generally similar for all jurisdictions. The parent requesting the modification must file a motion with the court that issued the original order or, if an agreement is reached between the two parents, it must be put in writing and signed by a judge.
How To Reduce Child Support Payments
With the job market still struggling and the housing market in the tank for the foreseeable future, it still feels like the Great Recession is as great as ever. Since financial hardship still a factor in so many parents’ daily lives, supporting their children can be stressful and sometimes nearly impossible. Non-custodial divorced parents usually have a child support agreement that they must abide by to do just that. But what do you do if, in these tough times, you have a major financial set back? The following may help you learn how to reduce the child support you owe.
Child support agreements (even if negotiated out of court) are finalized as court orders set up for the support of a child or children to care for their everyday needs such as schooling, living expenses and health care. Once the support agreement is finalized by a court order it is binding. If the agreement is violated by a parent who repeatedly fails to make support payments on time, that parent can face fines or even jail time.
If you have a substantial change in circumstances, such as a major financial setback due to a job loss, or large unexpected medical bills, lowering child support payments is a possibility if you ask the court to adjust your support agreement. Because the requirement to pay support at the designated amount continues until a court orders otherwise, you must notify the court of your change in circumstances.
Child support is based on the relevant state’s guidelines and definition of “gross income,” which includes all income and earnings of the non-custodial parent. This includes not just wages and salaries, but benefits, pensions, property income, etc. Any documentation such as letter from your employer, unemployment benefits documentation, property sales agreements, or medical bills, is a good way to evidence what the change in circumstances is.
Modification of child support payments can also occur if one parent gains income as well. If custodial parent has gained income since the time of the original support order, that may also be a valid reason to seek a change in the support amount. Finally, when the supported child turns 18, there is usually a reduction in the amount of support. This may vary depending on the agreement, epically if the supporting parent has agreed to help pay for a college education.
If I Lose my Job, Can I Stop Paying Child Support?
You go through divorce. You figure out child custody and child support. Then, a year or two later, you lose your job. What do you do? Can you stop paying child support because you don’t have an income anymore?
The answer is clear: no.
There are a few reasons why you can’t stop paying child support: The court order telling you how much to pay doesn’t change when you lose your job.
When you lose your job, the court order doesn’t change. The practical effect of that is when you don’t pay, every month you have a judgment for the child support you didn’t pay. The more you don’t pay the amount ordered, the more judgments against you stack up, and the farther in the hole you get.
For example, if you’re ordered to pay $800 per month and stop paying for six months after losing your job, you’ll have judgments against you for $4800. You’ll have to pay back that $4800 over time, unless you can convince your ex to forgive the debt — good luck with that.
The judgments you accrue can be used against you. Your ex (or the Utah Office of Recovery Services) can use the judgments we talked about above to garnish your wages or put liens on your property.
By property I mean your house, your car, or they can drain your bank accounts. Anything you own is fair game, even your dog (true story).
If you stop paying and ever want to change custody or parent-time in the future, you’ll have a much harder time of it.
Judges don’t like people who don’t pay child support. They assume they don’t really care about their children much. Keeping that in mind, you can see how not paying would make it difficult to change custody or parent-time with a history of not paying child support.
If I Can’t Stop Paying, What Can I Do?
Since you can’t stop paying child support, you have to deal with the situation differently. If you’re situation is not temporary (e.g., you’re going to get another job in two or three months), then you will have to go back to the court and request that your child support be lowered. This means you’ll need to file a motion with the court and go to a hearing to discuss your job situation.
Keep in mind that if the court lowers your support, it will be increased when you get a new job.
If your new job pays less than your old one, that’s usually okay. When taking a lower paying job is not okay is when you purposefully take the job to pay less in child support. That is called voluntary underemployment, and the court doesn’t like it one bit.
How Child Support Is Determined When a Parent Has No Income
If you don’t have a source of income and cannot afford child support, you will still be required to make a monthly child support payment. If a parent does not have a source of income, the court may calculate income based on prior work history and/or the parent’s potential earning capacity.
For example, if a parent is unemployed or underemployed, the court may look at the parent’s previous employment history to determine how much they are capable of earning again in the future. Essentially, your child support obligation will be partially based on your ability and opportunity to find similar work, whether inside or outside of your chosen profession.
Do I have to pay more child support for my second job or my overtime pay?
Child support is calculated based on one 40-hour per week job. This is written in the Utah Code. So, in general, the answer is no, you will not have to pay more child support for your second job. However, as the law typically goes, there are exceptions to this rule. If one parent normally and consistently worked more than 40 hours at their job (overtime pay), the court can take this into account when issuing a child support order.
What if I got my second job or started working overtime to pay my child support?
Some parents that are already working 40 hours per week feel the need to pick up extra hours at work or get a second job in order to pay their child support obligation, but they worry doing this will actually increase the amount of child support they have to pay. Getting another job or picking up extra hours in the middle of a divorce or a custody battle will most likely not increase a parent’s child support obligation. As stated above, Utah law provides that:
• child support will be calculated based on one full-time 40-hour job; and
• overtime pay will only be considered if that overtime pay was regular and consistent before child support was initially calculated.
Free Initial Consultation with Lawyer
It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!
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