Legalese — Child Support Self-Modification

photo courtesy of MorgueFile
photo courtesy of MorgueFile

When people get divorced and there are children involved, even in the most amicable of situations it is nearly impossible to predict how things will shake out in the future.  Especially if the children are younger, and the order or settlement agreement is expected to hold for a decade or more.  Situations change.  Children’s needs change as they get older.  The parents’ expectations change as they settle into a divorced state.  Mom or Dad might remarry, and there might be step-siblings to work around.  Someone might move.

All of these situations might mean that a change in custody or visitation is the best thing for the child along the way.  This might be something that the parents agree about, or it might be something that is fought tooth and nail.  Once children become teenagers, they may have a strong opinion about which parent they want to live with, and often the parents go along with it.

This changes the child support obligation.  But maybe not in the way you think it does.

The Court’s Order is the Court’s Order.  If it says that Dad pays Mom child support in the amount of $500.00, then Dad pays Mom child support in the amount of $500.00 so long as the children are young enough to need child support.  This is true until the Court says otherwise, even if the oldest child has aged out, or if all three children have gone to live with Dad.

Georgia law is very particular about child support.  It cannot be waived (legally) by either parent, no matter how much or how little one of them makes, and no matter how much they simply don’t want to deal with the other.  And it can’t be modified by private agreement.  Of course, as a practical matter, people modify it all that time.  The truth is that the Court will never know you have made a private agreement unless one party or the other says something to the Court.  However, you can’t count on this, and shouldn’t count on this.  I have seen this situation more than once: the children, who have lived with Mom for several years move in with Dad and Dad quits paying child support.  Two years later, Dad needs a piece of paper giving him legal custody to enroll the children in a new school, and so he files something with the Court.  Mom files a counterclaim for contempt, saying that Dad hasn’t paid child support in two years.

The defense that Dad has actually had the children for the past two years is not a good legal defense.  (It can be a good equitable defense, but the distinction between law and equity splits some very fine hairs, and is one that confuses most lawyers.  It can’t be dealt with quickly here, nor can it be relied upon in a Court of Law.)  Odds are good he will have to pay some of that child support because he was Court ordered to do so, and a Court order is a Court order, whether or not it makes sense in the real world.

So.  If anyone asks me, I tell them this: pay the child support obligation until you get a Court order that says otherwise, and go ahead and get the Court order on the front to protect yourself.

The same goes when a child ‘ages out’ of child support.  Let’s say you got divorced when the children are 9 and 12.  Fast forward six years.  The eldest has graduated from high school, and now only one of them is eligible for child support.  Can you cut the amount in half?  Reduce it by something?  Nope and nope.  First of all, it doesn’t work that way.  If you figure out child support for two children and for one child, the amount isn’t exactly double.  The theory being that the roof over the head, the electric bill, etc., don’t get reduced simply because you have one less child.  It is a somewhat complicated formula.  Also, presumably some time in the past six years, someone’s income has changed, which would mean that if you were to refigure child support for one child, it would be a completely different number anyway.  So, unless your order specifically says that when one child ages out the child support is reduced to X dollars, don’t reduce it on your own.  You could be held in contempt.  You are most likely better off getting a new order which reflects the current reality.

Nothing in this article should be construed as legal advice.  It is being presented for general informational purposes only and may not apply to your particular situation.  I cannot evaluate your situation without being presented all the individual facts. 

About Lori Duff 352 Articles
Lori is the author of the bestselling collection of humor essays, "Mismatched Shoes and Upside Down Pizza" currently available exclusively on Amazon. In order to finance her writing habit, she is a practicing lawyer with Jones & Duff, LLC. She is married to Mike Duff, who is a retired DeKalb County Public Safety Officer, and has two amazing children who make cameo embarrassing appearances in her blog posts and who attend Walton County Public Schools. Her legal column, "Legalese", is meant to de-mystify and humanize the Court system. When asked about her writing, Lori says, "Life is too short not to laugh at every available opportunity. My goal is to make myself laugh -- and hopefully you will laugh along with me."

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