Tag: child support modification

My Ex-wife Is Married. Should Her and Her New Husband’s Total Household Income Be Used When Determining Child Support?

I really don’t understand why this question gets asked, and it is asked frequently. Actually, that’s not true. I do know why.

The people who usually ask this question are child support obligors (payors) who are suffering under the burden of their child support obligation. They resent having to pay so much child support, or even any child support of all. Frankly, I sympathize. Often, child support is calculated incorrectly, based upon an income that the child support obligor does not earn and never did earn. Sometimes child support is based upon the obligee falsely reporting his/her income is much lower than it really is. Other times, child support is based upon an award of child custody that is unfair to parent and child alike.

And so there are many discouraged child support obligors who become obsessed with finding a way to pay less or no child support. This obsession clouds their judgment. They begin to see “reasons” for reducing or eliminating the child support obligations that make no sense. One of these so-called reasons (that isn’t really a reason) is when the child support obligee remarries. The thinking goes in the minds of these hapless child support obligors that the remarried parent now has a new income source in the form of the income of the new spouse’s income. The problem with this argument is that while the parent may have a new spouse, that new spouse is a stepparent to the child, not that child’s parent. The child still has only two parents who are financially responsible for that child’s support. Stepparents do not have an obligation to support their stepchildren in Utah. And that is why parents who remarry do not have their spouses’ incomes included in their own incomes for child support calculation purposes in Utah.

Utah Family Law, LC | | 801-466-9277

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Are second jobs used to calculate child support?

What would happen if an individual gets a second job after child support has been determined? Would the individual be forced to go back or would it change anything?

In Utah (where I practice divorce and family law), the answer is found in Utah Code :

78B-12-203. Determination of gross income — Imputed income.

(2) Income from earned income sources is limited to the equivalent of one full-time 40-hour job. If and only if during the time before the original support order, the parent normally and consistently worked more than 40 hours at the parent’s job, the court may consider this extra time as a pattern in calculating the parent’s ability to provide child support.

If it weren’t clear from the language of the statute itself, here is what it means:

  • If the parent:
    • has a full-time 40-hour per week job;
    • is not working overtime regularly; and
    • has a second job,

then child support is calculated based upon one full-time 40-hour job. The second job cannot be included in the child support calculation.

  • If the parent:
    • has a full-time 40-hour per week job;
    • does not have a second job; but
    • is “normally and consistently working more than 40 hours at the parent’s job,

then child support may (not shall) be calculated based upon both the 40-hour job and the overtime, but the court is not required to include the overtime (in my experience the court usually will include the overtime in calculating child support). The second job cannot be included in the child support calculation.

  • If the parent:
    • has no recent work history; or
    • a parent’s occupation is unknown,

then that parent may be imputed an income at the federal minimum wage for a 40-hour work week. To impute a greater or lesser income, the judge in a judicial proceeding or the presiding officer in an administrative proceeding shall enter specific findings of fact as to the evidentiary basis for the imputation.

Income may not be imputed if any of the following conditions exist and the condition is not of a temporary nature:

  1. the reasonable costs of child care for the parents’ minor children approach or equal the amount of income the custodial parent can earn;
  2. the parent is physically or mentally unable to earn minimum wage;
  3. the parent is engaged in career or occupational training to establish basic job skills; or
  4. unusual emotional or physical needs of a child require the custodial parent’s presence in the home.
  • If the parent:
    • does not has a full-time 40-hour per week job; and
    • has a second job,

then income might or might not be imputed to that parent. Under Utah Code § 78B-12-203(8), income may not be imputed to a parent unless:

  • the parent stipulates to the amount imputed, the parent defaults; or
  • a hearing is held and the judge in a judicial proceeding or the presiding officer in an administrative proceeding enters findings of fact as to the evidentiary basis for the imputation.

If income is imputed to a parent, the income shall be based upon employment potential and probable earnings considering, to the extent known:

  1. employment opportunities;
  2. work history;
  3. occupation qualifications;
  4. educational attainment;
  5. literacy;
  6. age;
  7. health;
  8. criminal record;
  9. other employment barriers and background factors; and
  10. prevailing earnings and job availability for persons of similar backgrounds in the community.

Utah Family Law, LC | | 801-466-9277

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My child support is too high/too low. What can I do about it?

Child Support Can Be Modified, If Circumstances Warrant

As financial situations change, the amount of child support ordered may no longer be reasonable or even feasible.

Your income may have decreased due to no fault of your own. The child support payor’s income may have substantially increased. A child’s needs may have significantly changed.

You cannot modify your child support obligation simply because you want to; however, if there material and substantial changes in the financial circumstances of a parent and/or child(ren) between the time the original child support order was issued and now, it is possible for the child support obligation to be modified to reflect this change in circumstances.

Changes in circumstances that might warrant a change in the child support order could include your children attaining the age of adulthood, one parent spending more time with the children, or a change in income for you and/or your ex-spouse.

If you lose your job or suddenly or have other reasons why your child support amount is too high, your monthly child support obligation does not change automatically. Indeed, each month’s obligation becomes a judgment against you for the full amount ordered. Failure to pay child support in full can subject to you sanctions by the court, even criminal prosecution.

So if you cannot pay the amount of child support ordered, you need to take action to seek a modification of your child support obligation as soon as possible. If you do not petition or move to modify support, you will be deemed “arrears” in the payment of support.

Under Utah Code Section 78B-12-210(8), child support order can be modified by motion if three or more years have passed since the order was entered and:

  • there is a difference of 10% or more between the support amount as ordered and the new support amount under the child support guidelines;
  • the difference is not temporary; and
  • the proposed child support amount is consistent with the amount set by the child support guidelines.

If any of these factors is missing, you can still seek a modification of child support, but not by motion. Instead, you must file a petition to modify child support under Utah Code Section 78B-12-210(9). Under this section, there must have been a material change:

  • in custody;
  • in the relative wealth or assets of the parties;
  • of 30% or more in the income of a parent;
  • in the employment potential and ability of a parent to earn;
  • in the medical needs of the child;
  • in the legal responsibilities of a parent for the support of others;
  • in the availability or cost of health care coverage;
  • in work-related or education-related child care expenses of the payor or the payee of child support; or
  • due to the emancipation of a child.

The material change must result in a difference, which is not temporary, of 15% or more between the support amount as ordered and the support amount as required under the child support guidelines.

As soon as your financial circumstances change, you should consult with a family law attorney to determine if a support modification is warranted. They can help you seek this modification, changing the amount you are required to pay (or the amount you are to receive) as soon as possible.

Utah Family Law, LC | | 801-466-9277

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