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Can my ex husband reduce child support

Requesting a child support modification requires proof of a significant change in circumstances. Factors that might qualify for the support order to be changed may include a change in income of either parent, the birth of another child, or remarriage by one of the parents. How this will affect the level of support will vary. For example, a substantial increase in the custodial parent's income may actually lead to a decrease in the amount of support ordered if the child support guidelines are followed.

SEE VIDEO BY TOPIC: If a child support recipient remarries, can the ex-spouse stop making child support payments?


Child Support Modification

The undue hardship provision recognizes that, sometimes, a parent or child can suffer undue hardship if the parent pays the table amount, or the table amount plus special expenses. This section permits courts to set a different amount. There are three distinct steps to determining the amount of child support when a parent claims undue hardship. To help courts and parents decide whether undue hardship would result if the table values were ordered, subsection 10 2 lists five circumstances that may cause a parent or a child to suffer undue hardship.

They are:. Because the list is not exhaustive, other circumstances could give rise to a claim for undue hardship. In some circumstances, the debt load of a parent may lead to a finding of undue hardship. If this leads to a changed support amount, the court may decide that, when the debt is paid, the amount payable will change again. This allows courts to grant temporary relief so the parent can pay the debts without requiring another court appearance after the debt is paid. Access expenses may be unusually high because of the extensive time a parent spends with the children or because the parent otherwise has large expenses related to access, such as airfare.

On the other hand, if the paying parent spends little or no time with the children, the receiving parent may be the one with extra costs, such as babysitting fees.

A person may already have to support a spouse or children from prior relationships. Although the table amounts are presumed to apply in these circumstances, this section of the Guidelines recognizes that a pre-existing requirement to pay support to others may cause a parent or a child to suffer undue hardship, particularly those in lower income families.

The legal duty to support other children in a second family, for example can cause undue hardship if the parent also has to pay the table amount. These other children may be the parent's biological children, adoptive children, or stepchildren. This provision provides financial relief and promotes equitable treatment of all children whether they are natural children, adoptive children, or stepchildren. A parent may face undue hardship because he or she must support somebody, such as a previous spouse, who is ill or disabled.

For a parent who would suffer undue hardship if the table amount were ordered, the next step is to show that his or her household does not enjoy a higher standard of living than does the other parent's. This ensures that the child support amount is not reduced when the child lives with a parent whose standard of living is lower still. Once the first two steps have been cleared, the courts have broad discretion to determine the appropriate amount of support. If a court uses this discretion to order a different amount, it must record its reasons for doing so, per subsection 10 6.

The undue hardship provision is not meant to be used often. There is a strong presumption that paying parents are able to afford the table amounts because the tables represent reasonable amounts in average family circumstances. Section 10 balances the Guidelines objective of consistency with the need for a fair standard of support in exceptional cases. Courts have narrowly interpreted each element of the undue hardship test. Case law overwhelmingly confirms that the requesting parent must establish undue hardship and must demonstrate that the other parent is not even worse off.

A parent will not necessarily clear the first step simply by showing the existence of one or more of the enumerated circumstances that may give rise to undue hardship. Madam Justice Prowse, for the court, said in paragraph Since the basic tables were designed to be a "floor" for the amount of maintenance payable, rather than a ceiling, it is not surprising that the authorities have held that the threshold for a finding of undue hardship is high.

Hardship is not sufficient; the hardship must be undue , that is, exceptional , excessive , or disproportionate in all of the circumstances. Other courts have interpreted the word undue to mean excessive , extreme , unreasonable , unjustified , and improper. Each element of this provision has been interpreted very restrictively. Judges have only reduced child support because of debt in exceptional circumstances, an approach that is consistent with cases considered before the introduction of the Federal Child Support Guidelines.

The courts have very narrowly construed each element of the phrase unusually high expenses in relation to access , which appears in paragraph 10 2 b.

For example, in the case of Williams v. Williams , [] the paying parent's costs to travel between Nova Scotia and the Northwest Territories to exercise access were not held to be unusually high.

In a limited number of cases, courts have concluded that access expenses are unusually high in light of the extensive access that a paying parent exercises, not necessarily because of any single large payment such as airfare.

The courts are more likely to lower the amount if it was the custodial parent who decided to move. Berger [] illustrate this judicial point of view:. In this case, the father chose to move to Toronto for employment purposes. That is not to be held against him but he cannot use it as a sword to obtain relief as he has asked. In this court's view, the phrase unusually high access costs relates to, among other things, circumstances beyond the control of the payor or a consensual decision made for the benefit of the child.

Few parents have sought a finding of undue hardship on this basis and, as such, this provision has had very limited application. Under the Guidelines, the majority of undue hardship claims have been based on this section and most applications have been unsuccessful.

Courts have very strictly construed each element of this provision. A parent's legal duty to support a second family does not in itself create undue hardship. In Van Gool , [] the court confirmed this, deciding that the parent seeking relief must show that the obligation makes paying the table amount an undue hardship.

The person claiming undue hardship must provide cogent evidence that the costs incurred for the other child are beyond those associated with most children. Very few cases have been determined on the basis of this provision and, as such, it has had very limited application. Case law establishes that the subsection 10 2 list of circumstances is not exhaustive and that other factors may be considered. The parent asking for the change may have a lower household standard of living than that of the other parent.

But this does not in itself lead to a finding of undue hardship. Courts have exercised broad discretion to determine the appropriate amount of support in undue hardship cases. In some cases, particularly when the circumstance that causes undue hardship is a legal duty to support another child, per paragraph 10 2 d , courts have refused to reduce the table amount.

Instead, they have somewhat reduced the payments to the receiving spouse because of special or extraordinary expenses, per section 7. In many cases where distance produces extensive access expenses, parents and judges instead agree to apportion the cost of those visits between the parents.

Sometimes referred to as a separate civil order , this option is used in place of the undue hardship provision. The undue hardship provision balances the Guidelines objectives of consistency and of a fair standard of support. However, many people feel that the very strict interpretation of this section has been unfair to children and paying parents who live far from each other. These parents may only be able to pay the table amounts by reducing their access, contrary to the children's interests.

The table values attempt to balance paying parents' average access costs and hidden costs incurred by receiving parents. Hidden costs include loss of career advancement opportunities and lost overtime. Thus, usual costs of access, such as meals, transportation, and entertainment, are borne by the paying parent as a normal pattern of spending and are contemplated by the guidelines amounts.

By including unusually high access expenses as a possible cause of undue hardship, the Guidelines implicitly recognize that children may benefit from meaningful contact with both parents. This provision therefore promotes the principle that children should have as much contact with each parent as is consistent with their best interests.

In a small number of cases, the extent and quality of access, or the lack of it, may cause undue hardship. Applications to reduce support because of extensive access have generally succeeded only when the paying parent proves that paying the table amount would interfere with the quality of time that the children spend with the paying parent or would threaten the children's relationship with him or her.

In this case, the access parent's role and importance may be detrimentally affected by an inability to offer the children a reasonable level of activity and comforts relative to that enjoyed in their primary residence.

The payment of support at the Guideline level will interfere with the ability of the mother to provide such activities and comforts. In Baranyi v. The undue hardship provision was intended to be available to either the paying or the recipient parent. However, there have been very few cases where the recipient parent has successfully sought an increase from the table amount on the basis of undue hardship.

This may be so because the listed circumstances in subsection 10 2 appear to be available only to paying parents to reduce the support order. In addition, some courts are reluctant to increase support under this section out of concern that the undue hardship provision may become an indirect way of getting spousal support.

But the support recipient can claim undue hardship in some circumstances. For example, the paying parent may exercise little or no access, thereby increasing not only the receiving parent's regular costs, but also his or her hidden costs. Hampson [] suggests that a failure to exercise access could give rise to a claim for undue hardship, if this increases the receiving parent's costs.

In Scharf , [] lack of access visits led to an increase in child support. There, the parents each had custody of one of the two children. For many years, courts and parents have struggled to determine the appropriate approach for determining child support when a parent has to support other children.

The issue is complicated because the court must often decide between the competing interests of two or more sets of children. Courts are often faced with the difficult task of distributing limited resources between two or more households.

Many people think that financial hardship caused by subsequent family obligations should rarely reduce the child support amount. Paying parents, it is said, should fulfill child support obligations ahead of other, subsequent obligations, even if those obligations are to other children. That is to say that a parent should not be excused from a child support obligation because he or she chooses to have further children. This first families first approach has been adopted in many cases and is illustrated in the following comments from the case of Jackson v.

Holloway : []. A separated spouse with a child support obligation enters into a new family unit knowing he or she has an obligation and is expected to organize his or her affairs with due regard to that obligation.

A general or generic reference to the overall expenses of a new household will not give rise to a claim of undue hardship. Other courts suggest that while every child has the right to support, the parent's subsequent family should be given a chance to succeed financially and shouldn't suffer because of the prior child support obligation.

As a result of these two judicial approaches to the difficult issue of second families, the outcome of any given case is difficult to predict, thereby undermining the Guidelines objective of consistent treatment of parents. Although courts have applied this second step as intended, research suggests that courts and parents have not been using the optional Comparison of the Household Standards of Living Test in Schedule II. Many legal observers, parents, and judges have criticized the test as being too complicated, too long, and too difficult to apply.

Because families may live in so many different circumstances after separation, judges have broad discretion to determine the amount of support when they find undue hardship. As such, results are difficult to predict.

Regarding unusually high access expenses due to distance, education and training should be used to promote the use of a separate civil order. Many court orders have already used separate provisions for access and the costs of access, particularly in mobility cases, so this is not entirely new. This approach maintains the important premise that the table values are a floor for support; in mobility cases, it also removes the rigid requirements of section It is also consistent with subsection 16 6 of the Divorce Act, which allows the court making a custody or access order to "impose such other terms, conditions, or restrictions in connection therewith as it thinks fit and just.

Can My Ex Reduce Their Child Support?

The undue hardship provision recognizes that, sometimes, a parent or child can suffer undue hardship if the parent pays the table amount, or the table amount plus special expenses. This section permits courts to set a different amount. There are three distinct steps to determining the amount of child support when a parent claims undue hardship. To help courts and parents decide whether undue hardship would result if the table values were ordered, subsection 10 2 lists five circumstances that may cause a parent or a child to suffer undue hardship.

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Child support in North Carolina only remains in effect as long as the circumstances do not change. However, if something does change, then you or your ex can ask for a child support modification. If the judge finds there has been a substantial change in circumstances within three years, then the support amount may increase or decrease. If you received a child support modification notice or you think your ex wants to reduce their child support payment, call a North Carolina child custody and support attorney at Breeden Law Office. With over 15 years experience and offices in Raleigh , Garner , Angier , and Smithfield , attorney Breeden can help.

Changes that may affect maintenance payments

The formulas proposed in Chapters 7 and 8 are intended to apply to initial orders and to the negotiation of initial agreements. Where there is an entitlement to support, the formulas generate ranges for both amount and duration of spousal support at the time of divorce. The formulas will also determine a range of amounts for interim orders under the Divorce Act. What role do the Advisory Guidelines play thereafter, upon variation or review? What about remarriage or re-partnering or second families? These issues proved to be some of the most difficult of all in constructing spousal support guidelines. In the earlier parts we have touched upon some of these issues. Ideally a truly comprehensive set of advisory guidelines would apply to the full range of issues that can arise on variation and review. The current state of the law renders that impossible at the present time. We opted for a more modest approach at this stage — to apply the Guideline formulas as far as consensus and the current case law allow, and no more.

Can I Be Forced to Pay Child Support If I Don’t Have a Job?

That can be a big mistake, and can wind up costing you a lot of money and heartache down the road. While only an attorney in your state can give you legal advice about modifying your child support order, here are five general concepts to keep in mind. A great example of this is the situation in which one of the children covered in a child support order turns 18 years old. Most people figure that the child support order for a child will stop automatically after the child turns 18 years old.

The timing was devastating for Amanda, as it coincided with Carly beginning primary school and the recommendation that she be assessed for having special needs — a costly process.

By Aaron Thomas. One of the toughest tasks for separating parents is deciding how they will financially support their children. This article explains how remarriage affects child support under Florida law.

How to Increase Child Support Payments

Sometime after your divorce, it's not unusual for your ex-husband to remarry. It's also not uncommon for you to wonder about how his remarriage will affect your child support. Remarriage after a divorce can complicate issues. Your ex-husband may now have stepchildren to help support or may decide to have another child with his new wife.

SEE VIDEO BY TOPIC: Can an ex-spouse go back to court to adjust child support?

I am a divorcee living in London and my ex-wife resides in France with our 7-year-old daughter. They visit London 3 times each year. I also have a 2-year-old daughter with my new partner. My ex-wife remarried last week and her husband also has a 7-year-old-daughter. Does any of this affect my child support payments?

Impact of Coronavirus (Covid-19) on child and spousal maintenance payments

By Lina Guillen , Attorney. One thing is certain - life is unpredictable. Even the most well-thought out plans for child support may prove unsuccessful. You go back to court. Once a child support order is issued, either parent may request that a court modify change the amount of support, either up or down. Although either parent can ask a court to modify child support, this article will focus on increasing child support payments.

My ex-husband and I are divorced and have two children. If a parent files a motion to modify child support, the court will typically ask both parents to submit.

If you find yourself in the situation of your normal income having been significantly reduced for reasons beyond your control such as losing your job or illness it is important that you consider how any child or spousal maintenance will be paid. If you and the other parent have previously come to a voluntary agreement you should contact them as soon as possible to explain the situation. Being honest and transparent and keeping your communication open at these uncertain times will be key. Be clear that as soon as your income returns to normal the original payments will resume.

Get the answers to your ongoing questions about divorce, child custody, maintenance and child support and be the first to know about any changes to the law. So your ex got a great promotion or a cushy new job. Unfortunately, in our experience, when one ex gets a raise, he or she will not start upping the child support payments out of the kindness of his or her heart.






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