By Ron Gore, Cordell & Cordell Divorce Attorney
When and how to modify child support are questions that many parents find so confusing and daunting that they wind up doing nothing about their changed financial circumstances.
That can be a big mistake, and can wind up costing you a lot of money and heartache down the road. While only an attorney in your state can give you legal advice about modifying your child support order, here are five general concepts to keep in mind.
Child Support Modifications Aren’t Automatic
Just because the factors that went into calculating your child support payment have changed, that doesn’t mean your child support order will change automatically. A great example of this is the situation in which one of the children covered in a child support order turns 18 years old.
Most people figure that the child support order for a child will stop automatically after the child turns 18 years old. After all, the child support order itself may even have language saying that child support is ordered until the child turns 18.
But the thing to keep in mind is that there isn’t anyone other than you and the other parent paying attention to the child’s ongoing child support eligibility.
The same holds true for changes in either your income or that of the other parent.
The fact that your income has gone down – or the other parent’s income has gone up – typically won’t trigger an automatic review or modification of the existing order.
So it’s important not to just sit back and expect that the order is going to change without you having to do anything, especially because…
Child Support Modifications Aren’t (Usually) Retroactive
So, let’s say that you were laid off on January 1st, but didn’t file your motion to modify child support until February 1st. In most cases, the court will only consider changing the child support order back to the date you filed the motion to modify.
There are exceptions to this general rule, and that’s why it’s important to consult with an attorney as soon as you know that a substantial change in any of the child support calculation factors has occurred or, even better, will occur.
In Oklahoma, for example, there is a statute that allows a retroactive change in child support if a parent paying less child support because of extensive parenting time didn’t actually have the child as often as the order anticipated.
But even if both you and the other parent seem to agree that the child support order should be changed, remember that…
Child Support Modifications Aren’t (Ever!) Handshake Deals
Nobody likes going back to court. It’s expensive and time-consuming. Even just being in the courthouse can bring up a lot of bad feelings better left in the past.
However, there is something worse than going back to court modify your child support order: going back to court on a contempt charge because the other parent conveniently forgot your out-of-court agreement to change how much support you should be paying.
No matter how well you think you’ve been getting along, or how reasonable the other parent seems to be, never rely on a handshake agreement, or even a handwritten agreement out of court, to modify child support. The bottom line is that only the court has the ability to change its orders.
And, if you want the court to modify your child support order, you’ve got to…
Keep Great Records
It’s very easy to fall into a rhythm, get complacent, and stop keeping records of your child support payments, medical reimbursements, daycare expenses, etc.
And it’s no secret that dads, especially those working long hours to make their child support payments on top of paying all of the bills involved with keeping up their own household, fall behind on their recording keeping way too often.
Part of the reason dads especially get so complacent with their record keeping is that it never crosses the dad’s mind that the mother will deny receiving child support payments that he actually made. But that very thing happens every day in courts across the country.
So, how do you keep great records?
One way to do it, if possible, is to take advantage of state agency income withholding. Although the idea of inviting the government into your finances may seem counterintuitive, an income withholding order is the easiest way to keep reliable and consistent records of your child support payments.
If you’re self-employed or an income withholding order is for some other reason not the best option for you, try to set up an automatic payment through your bank with an automatic memo field showing that the payment was for the purpose of paying child support.
Remember that payments to the other parent aren’t necessarily for child support. So even if you made the child support payment, the other parent may try to claim that it was for some other debt, or was a gift, etc.
No matter what, never make your child support payment by cash – or even by money order – without getting a signed receipt from the other parent. Many dads have been found in contempt for not paying child support because the judge would not accept money order stubs as evidence of child support payments, even if when the stubs have “child support” written on them.
It’s also important to get signed receipts for your other payments, like daycare or medical expense reimbursements. Once you have those receipts, you’ve got to keep them organized and accessible, so that you can find them when you need them. But having great records of your payments isn’t enough. You have to be able to…
Get Your Payment Records Into Evidence
While this last point might seem like a no-brainer, the rules of evidence can be complicated, as many dads who tried to represent themselves in court learned too late.
You can have all of the records in the world, but if you can’t get them into evidence they won’t do you any good. That’s why it’s important to consult with an attorney early to help you prepare your case and get the best result possible on the day of court.