Child Support Modification

What is a “Continuing” Change?

The Judge has fairly broad discretion as to how to define “continuing.” For example if a parent is unemployed for only a few weeks that is not “continuing”.  But what if that parent is unemployed for many months through no fault of that parent (for a discussion of fault, see the section below entitled “Voluntary vs. Involuntary”)? If you believe you may have changes to your circumstances, or if the other parent is trying to change child support, you should contact us to help determine if the change is actually “continuing” and would allow the Court to modify the child support amount.”

What is a “Substantial” Change?

Similar to finding what is continuing the Judge also has fairly broad discretion to determine what is “substantial” If the change in any factor results in the new child support amount to be different than the current child support amount by 15% or more than the Court should automatically find that the change is “substantial”. For example if Parent 1 is paying Parent 2 $450.00 a month for child support and Parent 1 then receives a raise in income and that new income results in a child support amount that is greater than $67.50 a month, then that is a “substantial” change. The $67.50 is 15% of 450.00, so any change that is $67.50 or greater in that example should automatically be considered a “significant” change and allow the child support to be modified.

The issue of a 15% change has been misunderstood by some divorce lawyers and even Judges. The 15% has been incorrectly interpreted to be a hurdle or requirement in order to file for any child support modification. It is not a requirement. It merely means that if the change is 15% or greater than the Court shall find that change to be significant.

The confusion arises from the language in paragraph 24 of the Arizona Child Support Guideline that allows a parent to request a modification of child support by using the “Simplified Procedure”. In an effort to make changing child supports easier for parents there is a Simplified Procedure. The Simplified Procedure uses easier forms and is processed through the court in a simpler and faster method then a regular petition to modify. However in order for the parents to use the Simplified Procedure there must be the finding of the 15% difference. Unfortunately that has been misinterpreted to mean that in order to request all child support modifications there needs to be 15% or greater change. That is wrong and actually a modification to the child support order can be made even if the change is less than a 15% difference. Again the significance of the 15% is that it is automatic proof of a “substantial” change and so the request can proceed through the “Simplified Procedure” as opposed to filing a regular petition.

Voluntary vs. Involuntary

It is mentioned above that there is a distinction whether the parent becoming unemployed or underemployed was through no fault of that parent. The court can categorize the reason for the change as being either “voluntary” or “involuntary.” This is an important factor. If the Court finds that the unemployment or underemployment is a voluntary choice of the parent, then the Court has the discretion not to modify the child support. The seminal case on this issue is Little v Little, 193 Ariz. 518, 975 P.d2 108 (Ariz., 1999). In the Little case the parent paying the child support voluntarily resigned from the Air Force to go to law school. The parent reasoned that since he was now going to school as a full time student and no longer in the Air Force that his child support should be lowered to reflect his decreased income. In that case the Court found the parent’s choice to leave the Air Force was voluntary and that the child support should not be lowered.

The child support obligation for both parents arises from the legal obligation of parents to support their children. Thus if there is no reasonable reason for a parent to make no income or a lesser income, that decrease in income could be considered voluntary. If the Court finds the decrease in income to be caused by voluntary reasons then the Court has the discretion to deny modifying the child support. Not all modifications caused by a voluntary decrease in income will be denied. Again the Judges have discretion to make the most appropriate orders for the specific facts of each case. The Judges actually balance many factors such as the reasons of the voluntary decrease with the effect on the other parent and the best interests of the children among other factors.

Some obvious situations that may qualify as involuntary decreases in income and should allow the Court to modify the child support are: being laid-off, the employer implements mandatory pay cuts, and having to leave a job due to documented health reasons.

Because every family is different and every circumstance is different the Judges are given discretion to make the most appropriate orders for each specific family at that specific time. Therefore it is hard to apply a one-size-fits-all approach to family law matters and why it is important to contact us to address your specific facts and circumstances in detail.

When does the New Child Support Become Effective?

The ability of a Court to modify a child support order becomes effective on the first day of the month following notice of the petition for modification  (the petition is the document the parent files with the Court to request the modification).

For example, Parent 1 files a petition to modify child support on January 15th. A process server serves the petition on Parent 2 on February 15th. The parents do not get to court for their hearing on the issue until April 4th. In this example the Judge should order the new child support amount to retroactively begin on March 1st, being the month after Parent 2 received notice.

What if the Parents Agree to a New Child Support Amount?

Like everything in ligation, the parties are allowed to come up with their own agreements and reach a settlement. Therefore it is possible that you and the other parent can reach agreements as to how the child support should be changed. If you and the other parent do reach an agreement, it is a simple matter to draft the terms of the agreement in the proper form to be submitted to the Judge for approval and to be made the new binding order of the Court. Remember any agreements you make with the other parent may not be binding and enforceable unless you submit them to the Judge for approval and the Judge’s signature.

That last point above, regarding submitting the agreement to the Judge for approval is extremely important. It cannot be emphasized and stressed enough that if your agreement is not approved and signed by the Judge as an Order then it may not be effective and may not be binding. Many people think that an oral or even written agreement regarding changing the child support orders is going to be binding. This is not necessarily true. Again, any agreement to change  child support orders  should be submitted to the Judge for approval and signing to be effective, binding, and enforceable.

How is Child Support Terminated?

When the last remaining minor child of the parents emancipates, then the current child support obligation needs to terminate.

If there are no other minor children requiring support then child support can be terminated by submitting a form to the Court and serving the other parent, as opposed to filing a petition for a modification. If despite the emancipation of one or more of the children there still are minor children, then the total child support amount cannot be terminated, but it can still be modified as discussed in the sections above.

It is very important to remember that once the last minor child emancipates the Court does not automatically stop the child support assignment (garnishment). It is up to the parent that pays the child support to file the necessary forms to terminate the child support unless the Order of Assignment (withholding order) specifically provides for the termination on a specific date.

If the parent paying the child support has unpaid amounts from prior months, (the unpaid past child support is called child support arrears), then the termination of the current child support amount does not terminate the responsibility to pay the unpaid prior months (the arrears). So although the Court will terminate the current child support obligation the parent will still have to make monthly payments even after the child is 18, but all of those payments will be applied to pay down the child support arrears until paid in full.

A Word of Caution

The Maricopa County Superior Court has very helpful do-it-yourself forms to modify child support. These forms can be obtained from the Maricopa County Court’s website and hard copies are also available at any of the four Maricopa County Superior Court locations. These forms are very helpful for people to handle their child support modification for themselves. However far too many times a person will file the forms expecting the Court to modify the child support in the same way they calculated it and want it changed, but unfortunately for any number of possible reasons, the Judge rejects the request. This usually happens because the person failed to realize one of the other factors used to calculate child support may have also changed. It cannot be emphasized enough that before you file to modify child support on your own, or before filing any legal documents on your own, you should always have a family law lawyer in Phoenix review the documents and the facts of your specific case.