Joni Salomon, a family lawyer in Beverly Hills, answers:
Child support orders are modifiable long after a judgment’s finality. Subject to certain limitations, child support orders are modifiable at any time the court deems necessary. The family law court has primary jurisdiction over modifications. Once a marital status/dissolution action has been filed, the family law court’s jurisdiction attaches. Disputes over the modification of child support should ordinarily be heard in the family law action in which the original support obligation was imposed. However, parents often relocate to different states or countries, causing a shift in jurisdiction.
Generally, courts will not modify or revise a child support order unless there has been a material change of circumstances. There are no rigid guidelines for determining when the circumstances have sufficiently changed to warrant a child support modification. The determination is made on a case-by-case basis and the facts particular to each individual situation, such as ability to pay or the need for support.
Possible reasons for a modification of child support include:
- Changes in ability to pay: A change in either parent’s financial position is not an automatic ground for modification. The court will examine both parties’ circumstances and evaluate the situation in accordance with statutory factors set forth in the Family Code. The payor parent’s enhanced wealth is often grounds for increasing the child support level.
- Changes in earning capacity vs. actual earnings: The parents’ actual earnings are not always the controlling factor when calculating the obligor’s ability to pay. The court has discretion to consider the earning capacity of a parent as opposed to the parent’s income, so long as it is in the best interests of the children.
- Both parents agreeing to modify support: The parents may agree between themselves to increase court-ordered child support payments at any time and under any circumstances. The agreement should be written and signed by both parties.
Keep in mind that trial courts may not consider the income of a parent’s subsequent spouse or non-marital partner in determining child support except in extraordinary cases. For example, the new partner’s income may be considered if the child would otherwise suffer extreme and severe hardship.
The bottom line is that child support modification is determined on a case-by-case basis with the best interest of the minor child at the forefront.
Joni Salomon is the founder of the Salomon Law Corporation in Beverly Hills, California. Joni is a Certified Family Law Specialist with over 10 years’ experience practicing divorce and family law.