Many fathers know intuitively that their child support should go down if their income goes down, but they are unsure of when to file a petition to modify their child support. They could also be concerned about whether the cost of drafting and filing such a petition is outweighed by any possible reduction in child support. However, there are situations when a father paying child support should consider filing a petition to modify the obligation.
One limitation to keep in mind is that courts usually cannot modify child support prior to the date the petition is filed.
For example, if a father is laid off Feb. 1 but files his petition to modify June 1, the court can modify the child support obligation as of June but cannot go back to February — even if the court knows that is when the father’s income lowered.
A concern of many fathers filing to modify child support is that they will be required to pay the original ordered support until the obligation is lowered. This may result in an overpayment if the child support is lowered as of the date of filing, which could have been several months prior. However, if the payments decrease, the court can make adjustments to “burn off” any such accrued overpayment several different ways.
The court can calculate how many weeks of new child support the overpayment represents and delay implementation of the new child support payments. It can also order a lower child support until overpayment is paid off. The mother can be ordered to pay any overpayment back immediately or by payments. However, the overpayment cannot be offset against non-child support amounts owed by either party.
Another concern is that the period of lowered income may be temporary or brief, as in the period between completion of one contract employment position and the beginning of another. If the period is a known quantity, you can do the math as to how much support you will owe. If the period is unknown, however, we recommend that a father file to preserve the earliest possible date for modification.
It should be noted that you or your attorney can communicate to the other party that the petition may be voluntarily withdrawn if father’s income is replaced quickly.
You should consider filing a petition to modify child support if any of these events occur:
- If you are fired or laid off permanently, even if you expect to land a new job soon. The exception would be if you already have a new job lined up soon.
- You have a temporary layoff with no specific call back date. This may happen to union members between jobs or employees between projects. While it may be expected that the layoff is temporary, without a firm call back date, you need to protect your right to the earliest filing date.
- You have reached the end of a contract position, even if you expect to land, or have historically landed, a new contract within a short period of time.
- You have a period of work-related injury or non-work related injury or illness.
- You have been activated for the military. There are statutes addressing this situation as well as the general modification statues, but it is best to notify all parties and the court at the earliest possible moment.
Delaying filing the motion can end up costing you in the long run and since it can always be withdrawn, there is no point in waiting around hoping the situation will go back to how it was before. Whenever major circumstances change, file the motion to modify child support as soon as possible, and save yourself the earliest possible modification date.