Procedural Considerations for Parents Seeking to Modify Child Support

By Alan Pearlman on December 13, 2005

Frequently, as a result of a change in circumstances, parents seek to modify child support orders. Although the law varies considerably among states, delaying or failing to modify child support to reflect current circumstances can have a serious impact on both parents (whether recipient or payor) and children.

Consequences of Failing to Modify Regardless of the attendant circumstances, the parent legally obligated to pay child support is required to continue to make the payments until a modification order is filed. In the event the parent simply stops sending the child support payments to the intended recipient, the balance of the unpaid payments will accumulate, with interest. Ultimately, the defaulting parent will be obligated to pay the total amount past due, including any accrued interest.

Retroactive Modification Not Permissible
Most states prohibit courts from retroactively modifying a child support obligation. To illustrate, assume David is injured at work and his income is consequently reduced. Because he is now unable to pay the total amount of child support, David petitions the court for a reduction. However, even if the court agrees with him and reduces future payments, it will likely hold David responsible for the full amount of child support owed at the time. For this reason, it becomes imperative for a parent to immediately petition the court to modify a child support order when circumstances prevent the parent from making the full payment.

Time Limits
Most states will not allow a request for modification on a child support order unless a significant amount of time has passed since the order was originally set forth. Some statutes contain time limitations which affect how frequently a parent can seek to modify a child support order. Under some of these statutes, unless the parent can show a substantial and continuing change in circumstances (statutory language varies from state to state), modifications are prohibited within a certain period of time. For example:

In California, more than one modification within any twelve month period is prohibited. The statute contains an exception, however, for a petition based on “a significant decrease in the income of the moving party.”

In Texas, unless there is a “material and substantial” change in circumstances, a three-year limit is imposed.

Procedural Requirements
Depending on the state, the parent requesting a modification of the child support order is often required to do all of the following:

Retain the assistance of an attorney

File a petition with the court where the original child support order was entered

Show evidence of the change in circumstances – usually, the evidence must be completely new; i.e., evidence that had not been previously presented to the court