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How Do I Request Child Support Modification?

How Do I Request Child Support Modification

Although an appropriate amount of child support will be determined by the courts, that does not make it permanent. Depending on the circumstances, you could have your current child support order modified. If either parent’s income is adjusted or lowered, he or she may need the order to be changed in order to meet financial obligations. A child’s cost of living may also change, creating a need for adjusted child support. Once a child support agreement or order is given by the courts, the amount payable may be raised or lowered under different circumstances. Changes in the earning ability of the parent or the financial needs of the child could be adequate to warrant a modification. The prevailing costs of living may also create a need to adjust child support.

Reasons for Modifying Child Support

To be successful with your petition to modify child support in the Utah courts, you need to provide proof that there has been a considerable change of circumstances since the original order was issued – the change may be either permanent or temporary. Here are the common situations under which the courts may grant your request to modify child support in Utah:
• The parent who pays child support has had a significant increase in his/her income (often 10 percent or more).
• The parent who receives child support has had a decrease in his/her income (often 10 percent or more).
• Involuntary loss of job by the parent receiving child support.
• A significant increase in the needs of the child, resulting in increased medical, educational, and other expenses.
• One parent experiencing difficulties as a result of illness, disability, or temporary financial troubles.
• The increased cost of living that impacts the financial condition of one of the parents.
• Either of the parents is remarried.

How to Change Child Support in Utah

Child support can be modified by taking two approaches through the Utah courts: filing a petition to modify child support or filing a motion to modify child support. A motion is often filed under limited circumstances in Utah, making the filing of a petition the better option in the majority of cases. You may have a number of reasons for needing to modify – either increase or decrease – the amount of child support you pay. However, for your request to be successful, you must prove to the court a substantial change in circumstances has occurred to warrant the modification, which can be temporary or permanent depending upon the nature of the changed circumstances.

Common reasons the court acknowledges for modifying child support include:
• A substantial increase, usually 10 percent or more, in the paying/non-custodial parent’s income;
• A substantial decrease, also usually 10 percent or more, in the paying parent’s income;
• The custodial parent involuntarily loses a job;
• The child’s needs substantially increase leading to extra medical, educational or age-related expenses;
• Either parent experiences hardship because of illness, disability or another temporary financial burden;
• Remarriage by either party;
• Either parent’s legal responsibility to support other the person changes significantly; or
• The cost of living increases.

To modify a child support order, you may take one of two approaches: Filing a Motion to Modify Child Support or filing a Petition to Modify Child Support. In Utah, the circumstances that permit you to file a Motion to Modify Child Support are limited. In most cases, you must file a Petition to Modify Child Support. Either way, you need to serve the other parent your documentation by a method that is authorized by Utah Rules of Civil Procedure (URCP).

Motion to Modify Child Support

In order to modify child support via a motion, you must meet certain conditions. These conditions include:
• The order was entered three or more years ago;
• The difference between the amount as ordered and the amount as required under the Utah Child Support Guidelines is 10 percent or more;
• The difference in the modified support amount isn’t temporary; and
• The proposed amount is consistent with state guidelines.
Additionally, the current order – including the Decree of Paternity, Decree of Divorce, Decree of Child Support and Parent Time – cannot have been modified within the past three years.

Petition to Modify Child Support

If you don’t meet any one of the conditions to make a Motion to Modify Child Support, your other option is to file a Petition to Modify Child Support.

You can modify support by petition if the order was entered three or more years ago and you meet these other conditions:

• The difference between the amount as ordered and the amount as required under the Utah Child Support Guidelines is 10 percent or more;
• The difference in need for the modified support amount isn’t temporary; and
• The proposed amount is not consistent with the guidelines.
Your child support order also can be modified using a petition if the order was entered less than three years ago and there has been a material change to one of the following:
• Custody;
• A parent’s relative wealth or assets;
• A parent’s income (a material change is 30 percent or more);
• A parent’s employment or earning potential;
• The child’s medical needs;
• A parent’s legal responsibilities to support other individuals;
• The cost or availability of healthcare coverage;
• Work- or education-related child care expenses; or
• The emancipation of the child.

According to the Utah Code, the change must result in a non-temporary difference of 15 percent more between the original support amount and the amount as required under the guidelines, which will be the proposed amount. Other grounds for modifying child support through a petition, regardless of when the order was originally entered, include:

• The child turns 18 or is emancipated;
• The coverage, availability or reasonableness of cost of healthcare insurance changes significantly;
• Work- or education-related child care expenses change significantly; or
• The award of tax exemption for dependents changes.

Can You Avoid Child Support Legally?

It should be stated from the start that the child support system is strongly regulated, making it very difficult to beat. However, there are ways and means to ensure you only pay a fair and correct amount. We’ve come up with a list of a dozen legal and ethical methods to avoid overpaying.

1. See Your Children More

The single best thing for avoiding child support is to spend time with your children. How much you pay basically depends on how many nights per fortnight the children spend with you. If you have the kids 7 nights per fortnight, you’re assumed to be covering 50% of their costs through direct care. You may still need to pay some child support if you have a higher income than the other parent. Child support payments are lower if you have at least 2 nights with the children per fortnight. The amount drops again if you have 5 nights and then keeps reducing as the number of nights’ increase. To have more time with the children, ideally you can come to a mutual agreement with the other parent. Otherwise, you’ll need to go through a court process (which starts with mediation).

2. Make a Binding Child Support Agreement

Number 2 on the list is a binding child support agreement. This is where you and the other parent agree on how much child support will be paid over a specified period. The precise terms of the agreement are up to the parties.
To be recognized by Child Support, you both need to;
(i) get legal advice and,
(ii) obtain a legal certificate to attach to the agreement.
Getting an agreement which is legally binding protects the parties involved. That means the government process would continue (if you’re already in the system) or could be initiated by either party at any time (including calculation of arrears and ongoing payments). A binding child support agreement could be advantageous if you negotiate well. But, perhaps more importantly, it is excellent for creating positive work incentives. Each party keeps any extra income they are able to make (instead of giving some up via child support). You may both be better off in the end (emotionally as well as financially).

3. Don’t Chase Pay Increases

When you’re a child support payer, work-life balance can be a big issue. You may feel like you’re working for everyone else (the ex, the taxman and your children) without having much for yourself. Taking a more relaxed approach to your career could be important for mental well-being while also lessening child support payments. If you get a pay rise, child support goes up because; your income is higher relative to the other parent and, the children are assumed to cost more to raise (because combined income is higher). Obviously, you shouldn’t be looking to knock back an easy promotion or a better paying job just for the sake of it. You and the kids will be financially worse off. But, at the same time, you could re-think doing overtime or a tough job that pays only slightly better. Work can be personally rewarding as well as a means to pay bills.

4. Become Self Employed

A strong way to gain control over your finances is to become self-employed. Instead of taking a salary or wage from an employer, you find work for yourself (which could be contract work or running a small business). If successful in self-employment, you control how much income you earn and, therefore, how much child support must be paid. You can work harder when you need the extra money or, if taxable income is getting high, relax a bit. You can also choose whether or not to squeeze out more income. If you don’t need income now, you can invest in the business or spend money to improve your working conditions. Being self-employed also makes you a target for child support officers. They are notorious for using creative accounting to set excessively high income levels for self-employed payers. So be prepared for a strong defense if the other parent initiates a Change of Assessment.

5. Hire a Good Tax Accountant

It’s always good to minimize taxable income when preparing a tax return. For a child support payer, it lessens child support and tax liabilities together – since payments are based on the taxable incomes of parents. If you have complex tax affairs, hiring a good accountant might help you find extra deductions (or ways to boost deductions next year). But you can’t simply shift income and investment funds around to artificially reduce taxable income. That usually doesn’t work.

6. Pay Only What You Receive Credit For

The rules around what counts as child support often don’t favor payers. So be careful before paying for anything out of your own pocket or sending money to the other parent. Make sure it counts as child support, which may require you getting written acknowledgement by the other parent. Normally, you should just pay the exact amount of child support you are required to each month. If you have some care of the children, also pay directly for normal care expenses (when you have the kids) and any activities or purchases you personally choose.

Shared expenses when you have partial care

There are no firm guidelines around how child support money should be spent on children. Each parent spends money on the children independently. If you want something for your child and the other parent doesn’t, you’ll have to pay for it (and vice versa). Some expenses should really be split in a shared or regular care arrangement, such as for clothing, dental work and sports participation. It’s unfair if only one parent is always covering the costs.

The split should normally reflect the formula’s cost % split. For example, if you have the children 5 nights per fortnight, you get credit for 27% of child-raising costs (see Cost % Table). So, overall, that’s about the percentage you should be contributing towards shared expenses.

7. Inform Child Support if Your Income Drops

The current amount of child support you pay is normally based on your taxable income for the previous financial year. If your income is actually lower than previously, you should tell Child Support immediately. They don’t do backdating for payers. A downward adjustment in child support is likely to be made if your income is at least 15% lower.

8. Lodge Tax Returns Quickly if Your Income Drops

Always remember that Services Australia doesn’t do backdating for the benefit of payers. If you’re late doing a tax return after your taxable income drops, they won’t give credit for any over-payments. Get your tax return into the ATO soon after 1 July if you think taxable income has fallen for the financial year.

9. Avoid Triggering a Change of Assessment (COA)

The other parent can initiate a Change of Assessment (COA) review of your case if they believe the current assessment is unfair. A COA may be justified on the basis of special circumstances, which include you having significant assets or access to extra income. COA’s are often initiated against self-employed payers and payers who have reduced their income significantly.

As payers who have experienced the process can testify, a COA can lead to unfair outcomes. They are best avoided. You need to be careful when doing anything that might look like you’re trying to get out of child support. For example, you can’t choose to take a different job if the income is significantly lower. You are also prevented from stopping work to study. In both cases, Child Support is liable to set your income for support purposes to your highest earning amount.

We can change your child support if we’re satisfied there are special circumstances and the change would be fair to both parents and the child… You need to give evidence for at least one of the 10 reasons to change an assessment. We will send the application to the other parent so they can respond.

10. Initiate a Change of Assessment

While the COA process is often used against payers, it can also be applied to payees. If the other parent’s reported taxable income doesn’t reflect their financial means, you can initiate a COA. For example, you might start one because the other parent is choosing not to work.
Note that payees tend to fare better in COAs because of child caring responsibilities. For example, they are not expected to work if they have children below school age. They also lack an income benchmark if it’s been many years since they worked full-time.

11. Donate to Charity

Donations to registered charitable organizations are generally tax deductible. By giving to charity, you can lessen your taxable income and partly reduce child support.

12. Have More Children

Having another child will somewhat reduce how much child support you pay. An extra dependent increases your basic living costs in child support calculations. Just make sure the other parent is a good earner. Otherwise, you could end up paying a lot more child support in the future.

Free Divorce Consultation

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!

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

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