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Divorce & Family Law Blog by Attorney Jamie Elmer of Berkeley, California

Changing an Existing Child support order

Changing, Mofifying an Existing Child support order

Need to show Changed Circumstances

Child Support can be modified at any time, either before trial, or after judgment, upon a showing of changed circumstances. "Changed circumstances" in this context refers to a material increase or decrease in either party's income, or a material change in the relative percentage of custodial timeshare by each.

A change in a party's expenses is almost never a basis for changing a support order. [the support calculation software doesn't even include any expenses as factors, other than the cost of health insurance,].

A child support order ordering less than the "guideline" amount of child support may be modified at any time, without a showing of changed circumstances. The state has established specific guideline child support amounts based on the parties' incomes, tax filing status, and relative percentage of custodial timeshare [and other factors]. Therefore, even where the parties agree to less than the guideline amount and the court approves that agreement and makes it an order, the order may be modified at any time thereafter to comply with the statutory guidelines.

On the other hand, the court, without an agreement, may deviate from the guideline given compelling circumstances and if there is a finding by the court in doing so, such an order would require changed circumstances in order to be modified.

Interference with visitation is not a ground for child support modification

The fact that one parent is not complying with the visitation order or interferes with the other parent's visitation rights cannot be used to modify a support order, nor is the equitable remedy to prevent enforcement available [see below].There are procedures, such as contempt proceedings, for enforcing custody orders.

On the other hand, if one parent actively conceals themselves and the children from the noncustodial parent the court might prevent the custodial parent from enforcing the child support as to any amounts unpaid during the period of concealment. [Marriage of Damico(1994) 7 Cal.4th 673, 685.].

May the parties change a child support order by simply agreeing to it without going to court? Yes, but with caveats.

The parties can change a child support order if they agree to it in writing. [See In re Marriage of Armato (2001) 88 Cal.App.4th 1030-1045-1047.], but it would probably be a good idea to get the signatures to the agreement notarized.

However, if the parties were represented by attorneys, entering into an agreement without the attorneys might be fatal to the agreement. And the usual defenses to contracts would apply, such as failure to disclose or misrepresentation of financial information, undue influence, mistake of fact, etc.

The court would most likely uphold any increase in child support entered into by the parties, but might strictly review any agreement lowering child support.

And the better practice is always to go through the court to modify child support. However, the parties may enter into a "stipulation and order" modifying support and, if the local rules are followed, they may file that with the court, as opposed to just having a private agreement between the parties.

Usual Rule is No Retroactive changing of support owed prior to filing of the Request to Change Order.

One can only seek modification of a support order prospectively from the date of the filing of the "Request for Order" with the court. Any amounts becoming due for the months before the filing must be paid and the court cannot modify those amounts. Thus, it is important to file a request to change the child support order as soon as the circumstances have changed which warrant the modification.

Equitable remedy preventing enforcement of support order as to past due support. 

On the other hand, the court might prevent enforcement of court ordered child support arrears where the obligor actually had sole physical custody of the child during the time when payments were not made, or the child resided entirely with someone other than the parent claiming child support during that time, or both parents resided together with the child during that time. [See Marriage of Wilson (2016) A140273 First Dist. Div Four, October 27, 2016; Jackson v. Jackson (1975) 51 Cal.App.3d 363, 366 - 367, In re marriage of Okum (1987) 195 Cal.App.3d 176, 182; Helgestad v Vargas (2014) 231 Cal.App.4th 719, 733, 736].

Court reserving jurisdiction to retroactively modify support order.

Also, the court sometimes will issue an order but reserve jurisdiction to retroactively modify the child support order, and in those instances the order is modifiable retroactive to the date the court specifies. This is often done where there is inadequate documentation of income but nonetheless a support order needs to be made. If it is subsequently discovered that either party's income was different than presented, the court can modify the order retroactive to the commencement date for support specified in the prior order [if the court reserved jurisdiction].

Retroactive modification allowed when order obtained by fraud or perjury.

In addition, a retroactive modification of child support would also be warranted where the original order was based on the fraud or perjury of one of the parties. [Marriage of Zimmerman (2010) 183 Cal.App.4th 900, 908 - 909.].

Also, while the court does not technically retroactively modify the support order where the minor reaches the age of majority before the filing of any modification request, the court can deny enforcement of any amounts unpaid after the child is emancipated. [Marriage of Utigard (1981) 126 Cal.App.3d 133.]

If  you have further questions regarding child support and child support modification, please contact Martin "Jamie" Elmer, family law attorney in Berkeley, California, at (510) 644-2411 or by email, for a free initial consultation.