If after receiving a child support or spousal support order, you have been left unsatisfied because you believe you are entitled to more, or you are the payor and now are unable to make ends meet after paying support, your income has changed, or you believe you should be paying less than ordered, there are several ways to modify the court’s order.
Modification of support through an agreement:
One of the most underrated and under used techniques in Family Law in my opinion are negotiations and stipulations. Many parties want to rush to court and do not bother attempting to settle an issue before requesting the court’s intervention.
If you have ever been part of a mediation in a family law case, mediators will tell you multiple times that people are more likely to follow an order if they have taken the opportunity to negotiate and agree to the terms of that order. This is because when you negotiate, you can agree to just about any support amount and payment schedule. When you are opposed to negotiating, and instead leave your child support or spousal support order in the hands of the Judge, you will not have this flexibility, as the court will make its order based on the law alone and is very unlikely to work with you on how support payments are to be paid. Not to mention that resorting to filing a motion instead of attempting settlement before filing will likely be more costly to both parties.
I remember having one case where my client was proposing a certain child support amount to be paid by the other party. The other party refused and instead said he preferred for the Court to make an order. Well, let me tell you, the look on his face when the Court ordered $600 more in child support than what my client was requesting, was priceless. The Judge did not care that this would leave him with limited funds to pay his other bills. The order was what it was. This scenario could have been resolved through a negotiation and agreement, without the parties having to incur as much in attorney fees.
Once you and the other party have negotiated a support amount, a Stipulation can be drafted. The Stipulation would then be filed with the court. As a family law attorney, my responsibility in these scenarios is either drafting the agreement on behalf of my client and reviewing it with my client, or reviewing an agreement drafted by the opposing side and making sure that it is favorable to my client.
A negotiation of this type does not have to take place at a mediator’s office. It can be between the parties and their attorneys via email, in person, or other forms of written correspondence. The beauty of this option is that once all parties have signed a Stipulation, more often than not, the client never has to step foot in a courtroom, as typically the Stipulations are sent for filing or can be filed by the attorney in court.
Modification of a child support or spousal support order via a court order:
The other option to modifying your support order is by filing a motion with the Court. Once filed, you would obtain a hearing date, typically 2-3 months after your filing date. The modification, if any, is typically retroactive to the date the motion was filed. For example, if your motion was filed May 1, 2020 and your hearing is not until August 1, 2020, then the new child support or spousal support amount would be retroactive to May 1st. This is why it is crucial for you to seek legal assistance to determine when is the best time for you to file this type of motion.
The Court will look at several standards when determining if a support order should be modified. For example, if you are requesting to modify a child support order, and the current order is for less than what should have been ordered, then you do not need to have a reason for the modification. On the other hand, if the child support order is “guideline” the law states that there has to be a change in circumstances in order for the child support obligation to be modified.
As for a modification of spousal support, the Court will look at if there has been a change in circumstances to warrant the request for modification. This may mean that you as the payor has lost your job and can no longer afford your spousal support obligation, or you as the person receiving the support has lost your job and requires for the support obligation to increase.
The standards the court will look at when modifying either child support or spousal support can seem complicated. It may also be difficult to determine if the proposed terms in a stipulation are favorable or not. But we are here to assist you in analyzing your particular facts and determine which option would be best for you and if your facts warrant a modification.
By: Gisela Acevedo, Esq., Attorney at Contreras Law Firm
 This may not be the case if your child support case is through the Department of Child Support Services. Please contact us for a closer look at your specific facts.