How to Modify a Child Support Order Without Going to Court
As recently as February 2020 the unemployment rate here in San Diego county was only 3.5 percent. By the end of April, San Diego County’s unemployment rate had skyrocketed to 24.7 percent with some zip codes recording unemployment rates over 32 percent. With all of these job losses, parents with child support orders in place may simply be unable to meet their obligations, and parents who did not previousy need support may now need the assistance of the other parent.
Child support orders are not permanent orders: they can be modified up or down to reflect a change in circumstances for either parent until each child graduates from high school or turns 19, whichever is later. With the school year so disrupted, there will likely be many children who do not graduate as planned and who will need support for longer than originally anticipated.
If you do not pay your support on time, or even if you make a handshake deal with your ex-spouse to reduce support, you may be faced with an enforcement order down the road. Until your current child support order is replaced with a new order, it remains in effect. If you miss payments or make reduced payments you are not off the hook. I once had a client come to me asking for help to prepare his documents so he could self-represent in court. He and his ex-wife had a handshake deal that he would stop making support payments when he lost his job. Three years later she was remarried and her new husband who had been through a similar hardship but paid his support encouraged her to go back to court to collect all arrears that were due. The court ultimately awarded all the back dated support to be paid because he was in breach of the existing court order. They did modify future child support and put him on a very modest repayment plan, but the deal he struck with his ex-wife was never made into an official order and therefore he was required to comply.
If you did not mediate your divorce, you may think you need to return to court to modify your child support. Here in San Diego County the courts are currently closed with only a partial opening scheduled for May 26th. Even when courts are back in session, their first priority will be rescheduling two months of cancelled hearings and focusing on emergency cases. If your plan is to use the courts to modify your child support order here in San Diego County, you will likely be met with a long line! They have far more urgent matters to schedule first.
The good news is you have a cost effective and efficient option: mediation. Even if you litigated your divorce or had attorneys negotiate the terms, you can still mediate a modification. Here is how:
Jointly select a mediator you can agree on who uses the same child support calculator as official judges (DissoMaster) and not just an online calculator.
Provide the mediator with a copy of your existing child support order.
Exchange your financial information.
Schedule a working session.
With the help of a mediator who will use the DissoMaster, you can negotiate a modification of your current support arrangement. It is possible with the right preparation to do this is in a 1-2 hour working session. The mediator will then draft your agreement into a "Stipulated Agreement" and submit it to the court. Assuming it meets the statewide guidelines or fits into an exception, the judge will enter the agreement and it will become an order of the court just as though the judge had made the modification for you. The price range for this will depend upon the complexity of how each party earns income and if there are other matters to modify, though with my services, it tends to be between $500-$900 total for both parties.
Whether the request is to modify child support up or down, each parent’s gross income available for support is considered, so you will each need to exchange an updated Income and Expense Declarations (FL-150). Note that “income” includes unemployment insurance benefits, and if you are not sure what else might be included, just look at the list of income you may have to report on page 2 of the FL-150 (the previous link will show you how to fill out this form).Question 9 of the FL-150 form also asks you to explain how your financial situation has changed in the last 12 months. If you are self-employed, you will need to get your year to date profit and loss statement together and be prepared to share the details of what has happened to your business income as well as what (if any) relief funding you have received.
There may be other factors too. The court has at its discretion the right to consider whether either parent’s earning capacity rather than actual income should be used when calculating support. (Fam. Code, § 4058, subd. (b).) Earning capacity is determined based on both the parent’s ability to work and the opportunity to work (Marriage of Smith (2001) 90 Cal.App.4th 74, 82.). For instance, you may have the ability to work but no childcare access, or the ability to work but no employment prospects if your job is in the service industry. This is where the support of a well trained mediator will help you to negotiate an outcome you can both agree to, at least until the circumstances that brought you to mediation have changed.
For many couples some expenses have actually gone down. For example, you may have had a $1,200 daycare bill that is currently zero, or extra-curricular expenses that are temporarily on hold. One or both of you may have mortgage, car, or student loan forbearance, or your gas and car insurance expenses may have also dropped. All of this will also have to be taken into consideration along with whether your return to work is already scheduled or if you are now faced with a complete job loss (or possibly even bankruptcy).
The forecasts right now are for a slow recovery and possibly the deepest recession since the Great Depression: do you really want to spend your precious resources on a legal battle that could be very slow and costly, one that pits the two of you against one another, when what you really need to do at this time is focus on is your financial recovery and the well-being of your children?
Laura McGee is a former trial attorney from Canada. She has been mediating with couples in San Diego County since 2011 and offers divorce services including mediation, legal separation, parent planning for unwed partners, as well as post-divorce modifications to custody, visitation, and child and spousal support orders. Laura has over 300 hours of training as a mediator and she teaches and mentors other mediators. Laura is available to work with couples by Zoom or in person at her office in the Village of Carlsbad, California. To learn more book a complimentary consultation with Laura directly from her website.