Modification of Child Support – Part II

So what do you do if you have experienced a change in your financial circumstances or in the residence of a child and the support amount you had agreed to with your ex-spouse no longer works? Do you need to go into court and have it modified? Or can you simply reach an agreement with your ex-spouse to pay or accept a different amount?

First:

I recommend that any modification of child support be done in writing. Even if you and your former spouse have an excellent relationship and agree on the new amount, having your agreement in writing may help resolve any misunderstandings in the future. And it doesn’t have to be fancy; anything that states the new amount of child support that is signed and notarized will be better than nothing if a future problem arises.

Second:

If there is ever a dispute between you over the terms of the modification, the judge is only required to follow the original agreement that was incorporated into the divorce judgment, not the newer signed and notarized agreement, so it is always much safer to have the amended agreement approved by the court. Unfortunately, getting court approval is likely to cost money because it will require sending the amendedment to the court and you are probably going to need the assistance of an attorney to do this.

So how do you decide if this is necessary? A good rule of thumb is that if the amount of support has increased it is probably less important to secure a new court order than if the amount has decreased.* Why? Because if your spouse fails to pay the increased amount you can file a petition in court right away, submit the signed agreement, and will likely prevail in having the court order your ex to pay the new amount.

But if the amount has decreased and you do not secure a new court order, it is possible that a court could require you to pay all the back support owed from the date you started paying the reduced amount, which could be years ago and result in a substantial amount of money. And as the example in Part I illustrates, that is simply too big a risk to take.

*If the decrease is only due to the emancipation of a child, and the agreement very clearly states that the support will be modified when that happens, you probably don’t need a new court order.