San Diego Child Support Modifications

1. Do not delay a modification

Be sure to take steps right away to modify child support if there are circumstances not allowing you to pay child support or if there are changes warranting an increase in child support. If you are unable to pay and you do not change your child support obligations, those payments become what’s called “in arrears.” There is no way of getting rid of a payment in arrears, other than paying it. It cannot be discharged in bankruptcy and cannot even be reduced by a judge.

If the other parent will not agree to modify child support, hire a qualified child support attorney to immediately file a motion with the court. If the other parent agrees to a child support modification, be sure to get it in writing and have it approved by a judge. If this is not done and the other parent changes their mind, the original support order still stands and you will be responsible for the amounts you did not pay.

Whatever your situation, whether negotiating with the other parent or taking it to court, we will assist and advise you in modifying your current child support orders in any type of circumstance.

2. Agree to modify with other parent

You should try to first come to an agreement with the other parent to modify the child support terms. But, be sure to hire a skilled family law attorney well-versed in these types of modifications to assist you through the negotiations to ensure proper protections. After you come to an agreement, you must request that the judge approve the change. It is more than likely this will occur, unless the agreed-upon amount is far below California guidelines. If this is the case, you will have to justify why the agreement is below the guideline amount, and that it will adequately provide for the child’s support.

3. Material change in circumstances to modify

If you and the other parent cannot agree on changes to the existing child support order, you will need to ask the court for a hearing to modify. The party seeking the child support modification will have to show that there is a “material change of circumstances” that justifies a modification of the existing order.

There are no rigid guidelines for determining whether a material change has occurred. So long as the child support guidelines are met, each determination is made on a case-by-case basis. This determination can only be reversed for abuse of the judge’s discretion. Examples of substantial or material changes include:

• An increase or decrease in visitation time with the child
• Shifts in either parent’s financial ability to pay
• A child suffering a permanent disability requiring costly care
• Increases or decreases of child costs
• A parent becoming disabled
• A parent becoming incarcerated
• Increased child-related travel expenses due to visitation changes.
• A parent suffering extreme financial hardship

4. What qualifies as a hardship for modification

If you are suffering “extreme financial hardship,” a court may modify child support by allowing a deduction from your income. Extreme financial hardship occurs when there is/are:

• Extraordinary health expenses,
• Catastrophic losses that are uninsured, or
• An adoption or birth of a child from another relationship or marriage (a deduction is given for basic living expenses of children living with the parent experiencing hardship)

This hardship deduction is not automatic; the court must consider all facts of income and expenses of your hardship.

5. Earning capacity as opposed to actual earnings when looking to modify

What you actually earn is not necessarily controlling in determining the ability to pay. A court may consider your “earning capacity” instead of actual earnings taking into account what is in the best interests of the children. Thus, a court may modify based on earning capacity even if there is no indication that an obligated parent intentionally and deliberately avoided financial obligations of supporting their child. If a court finds there is an opportunity to work and employment exists for a parent that is underemployed or unemployed, it may attribute earnings based on earning capacity, consistent with a child’s best interests.