February 24, 2013

Can I get my child support modified?

The Georgia child support statute (O.C.G.A. §19-6-15) was revised in 2007 to implement the “income shares model” that has been adopted by the majority of the states in the U.S.     Under this approach the income of both parents is considered in the child support calculations.

The current version of the statute imposes a complicated mathematical formula that is based upon a number of variables that are implemented into a Microsoft Excel program.     The implementation of some of these variables is within the discretion of the Court (ie. cost of private school tuition, cost of extracurricular activities) while other variables are not discretionary and must be included in the calculations (ie. cost of work related childcare, cost of health insurance).

A parent who is paying child support, or a parent who is receiving child support, may be entitled seek a modification provided that certain criteria are met.    First, the modification action cannot be filed within two years of the date of the final order on a previous modification action filed by the same parent.   I quite often have to explain to my prospective clients that this “two-year rule” does not prevent them from filing for a modification at any point following the initial determination of child support.    Furthermore, there are exceptions to the two-year rule whenever a parent is exercising more/less visitation than what is designated under the parenting plan, or when there has been an involuntary loss of income of 25% or more.

If there has been no modification action filed by a parent within the previous two years then the parent can seek a modification provided that he or she can show:    (1) A substantial change in the paying parent’s income;   (2) A substantial change in the receiving parent’s income; or   (3) A change in the needs of the children.

Modifications are typically filed based upon changes in income rather than changes in the needs of the children, but I believe that a substantial number of child support orders can be revised based upon changes in the needs of the children.    The guidelines now require that work related childcare be included in the calculations.    Childcare needs obviously change as children get older.   I believe that this is an increasingly underutilized basis for filing a modification.

I also think it is important to mention that Judges have a substantial amount of discretion when it comes to setting or modifying a child support obligation.    The law does not require a Judge to modify child support just because he or she is authorized by the evidence to do so.   Furthermore, a Judge can pretty much set child support wherever he or she desires provided that he or she is able to articulate a specific reason for deviating from the guidelines.

Finally, I think it is important to mention that it is often impossible to know when filing a modification case just how much of a change is authorized, or whether any change is authorized.    I am typically not able to find out information about the other party’s income and child-related expenses until I have engaged in the discovery process after the case has been filed. There is nothing that requires the opposing party to provide me with this information prior to filing.

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