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In all Federal Courts and Alabama State Courts
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CHILD SUPPORT MODIFICATION- Overview of Alabama Law

child support modificationChild Support Modification is Possible Depending on Circumstances

Child Support Modification, like the initial child support determination is generally governed by Rule 32 of the Alabama Rules of Judicial Administration.  The Alabama Child Support Guidelines contained in Rule 32 has specific provision regarding the child support modification.   The rules states:

A party seeking a modification of child support must plead and prove that there has occurred a material change in circumstances that is substantial and continuing since the last order of child support.

There shall be a rebuttable presumption that child support should be modified when the difference between the existing child-support award and the amount determined by application of these guidelines varies more than ten percent (10%), unless the variation is due to the fact that the existing child-support award resulted from a rebuttal of the guidelines and there has been no change in the circumstances that resulted in the rebuttal of the guidelines.

Regarding the 10% variation, a trial court has discretion and authority to modify a child-support obligation even when there is not a ten percent (10%) variation between the current obligation and the guidelines.  The court may do this when you prove a “material change in circumstances that is substantial and continuing.”  In addition, the court has discretion to deny a modification even when the ten percent (10%) variation is present, based on a finding that the application of the guidelines in that case would be manifestly unjust or inequitable.

WHEN DOES THE MODIFICATION TAKE EFFECT

The child support payments subject to modification are only those that are after the date of the filing of the petition for child support modification. This means that if there is a situation where you need a modification, it is highly advisable to file the petition for child support modification as soon as possible so that it will apply to as many payments as possible. If you lose your job, or suffer a financial hardship, the sooner you file for a modification the better. Unfortunately, depending on the county, it may take a number of months before the court can hear your case. Even though it may take months before you can actually get an order reducing the child support, if you ask for a retroactive change in child support, the court can order that the change go back to the date that you filed the petition for child support modification.

MODIFICATION WORKS BOTH WAYS

The 10% figure and the proof of a material change in circumstances can be used by either the person paying child support or the custodial parent receiving child support. If you receive child support and you discover that the financial fortunes of your ex-spouse have improved to the necessary degree, you can file a petition to increase child support. This also applies to a situation where the needs of the child greatly increases. In such a circumstance, it is possible that the increased needs of the children would constitute a material change in circumstances. A word of caution, however, is required. Spending a lot of money, in and of itself is not a showing of increased need. The increased need will be examined to determine if it is the product of truly increasing basic needs, or the result of an intentional taking on of expenses by the custodial parent.

THE IMPORTANCE OF THE 10% CHANGE

The 10% change is particularly important because it shifts the burden of proof to the opposing party. This means that if you can show a 10% change under the rules, then it becomes the other party’s burden to refute the evidence of the change.

EXAMPLES OF CIRCUMSTANCES THAT MAY OR MAY NOT PROVE A “CHANGE IN CIRCUMSTANCES” FOR CHILD SUPPORT MODIFICATION PURPOSES

Traditionally, the following events have been held to NOT show a change in circumstances sufficient to warrant a change in child support:

  • Remarriage or divorce from a different spouse
    Speculation as to overtime pay, either lack of or certainty of overtime

On the other hand, the following have been deemed to constitute a material change in circumstances:

  • Non-custodial parent filing bankruptcy
  • Reduction of income due to state imposed requirements for party’s profession
  • Increase in age of child that is consistent with the increase in cost of living for the age of the child

The bottom line is that as children grow older and as time goes by, there may be changes in the needs of the child and the ability of the parents to meet those needs. At times the ability of the noncustodial parent diminishes due to unemployment, pay reductions, loss of overtime, or other financial difficulties. At times the ability to support a child is increased, such as a pay raise, promotion, new employment, inheritance, or the elimination of other debts. In such circumstances, it may be in the best interest of one of the party’s to file for a child support modification.

The key here is to take action immediately. Do not delay.

If you believe that your child support obligation should be decreased, or if you are a recipient of child support and you believe that the amount is due to be increased, please call us at Bradford Ladner LLP for a free consultation. We will review your situation and advise you as to the available courses of action.

CALL  WILLIAM BRADFORD / AMBER LADNER / MEREDITH MAITREJEAN

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