And What You’ll Need to Be Able to Prove
Many divorced parents are seeking to lower their monthly child support payments. Modification of child support payments, whether temporary or permanent, may only be realized when one of the parents seeks an official modification of the existing child support order. Depending on where you live, you may have to start with filing a petition to modify child support. In addition, you will most likely have to complete a financial affidavit setting forth your new income and expenses. Here are few additional questions to ask yourself if you would like to move forward with a modification of child support payments.
Have you had a Substantial Change in Circumstances?
In many jurisdictions, a parent seeking to reduce their child support obligation must show a material or substantial change in circumstances in order to justify the modification. Unemployment, illness, physical or mental disability, old age, emancipation of a child, or other changes in circumstances may be sufficient reasons for reduction of child support payments. However, if any adverse changes are voluntary or due to bad faith, then the modification will most likely be disallowed. In many jurisdictions, the change has to be material, substantial, and continuing. In Illinois, for instance, you are entitled to seek a modification of your support based on a substantial change in circumstances, which is typically viewed as a 20 percent change in your gross income, but possibly less for lower-income earners.
What about Unemployment?
If you are unemployed and can demonstrate that you are not able to secure employment, despite actively searching, a court may grant the reduction or at least an abatement. In an Alabama case, the court held that a parent who sent out 245 resumes but could not secure employment was entitled to a modification. (King v. Barnes, 54 So. 3d 900, 904, Ala. Civ. App. 2010).
Generally, voluntary unemployment or underemployment will not entitle an individual to a modification. In Alaska, a parent who reduced his workload in order to train for a new profession was not entitled to a modification. (Olmstead v. Ziegler, 42 P.3d 1102, 1106-07, Alaska 2002)
However, a voluntary change in occupation or employment may constitute a material change in circumstances if the court deems the action was made in good faith. Here in Illinois, a parent who voluntarily decided to attend law school, a decision that lead to a reduction in income, was granted a modification. (Coons v. Wilder, 93 Ill. App. 3d 127, 133, 1981).
If there is a Medical Issue
If you seek a modification due to changed financial circumstances related to a disabling condition or illness, you will most likely have to present documentation setting forth the illness or disability. In case of a partial disability, one may still have to demonstrate that he or she is incapable of finding or retaining employment. Even a total disability may not be sufficient to obtain the modification. In a recent Illinois case, a parent was not eligible for a reduction of his child support obligation, after a car accident left him permanently and totally disabled because his net income from disability benefits exceeded his income prior to the accident, when he was employed. (In reMarriage of Rash & King, 406 Ill. App. 3d 381, 388-89, 2010)
It is best to consult with a lawyer to help with the child support modification process, which is generally cumbersome for a litigant representing themselves.
