Short answer: Maybe.
When evaluating a request for modification of an existing support order, the court generally focuses on whether there’s been (Marriage of McCann (1996) 41 CA4th 978, 982)
- a reduction or increase in the supporting spouse’s ability to pay, or
- an increase or decrease in the supported party’s needs.
Family Code §4058(b) gives trial courts discretion to set child support based on a parent’s earning capacity rather than actual income if the court finds the parent has the ability and opportunity to earn income at the level to be imputed. See Marriage of McHugh (2014) 231 CA4th 1238.
The party seeking to modify the child support order has the burden of showing that there’s been a material change of circumstances since the most recent order. Marriage of Bardzik (2008) 165 CA4th 1291, 1303.
But, contrary to popular belief, the following big life changes don’t necessarily qualify as a “change of circumstances”:
- Job loss. A lost job or demotion doesn’t automatically justify reducing the monthly child support payment. For example, a parent may have liquid assets that are substantial enough that a reduction in employment income doesn’t materially impair that parent’s ability to pay. In Marriage of Usher (2016) 6 CA5th 347, the trial court order that reduced child support from $17,500 to $9,842 was reversed in light of the father’s assets of over $34 million.
- Remarriage. A support obligor’s remarriage doesn’t in itself constitute a change of circumstances, and, except in an extraordinary case, income of a parent’s subsequent spouse or nonmarital partner may not be considered in child support determinations. Fam C §4057.5(a)–(b).
- Passage of time. The fact that it’s been a long time since child support was ordered generally doesn’t constitute a changed circumstance. But time passage potentially may constitute a changed circumstance warranting an upward support modification when it can be shown that the cost of living has increased over time and that the cost of raising children has increased as they get older.
- Visitation denial. A custodial parent’s improper denial of visitation by the other parent isn’t grounds to modify a child support order. See Fam C §3556. In contrast, a supported parent’s active concealment of himself or herself and the child may be a defense to nonpayment of child support arrearages. Marriage of Damico (1994) 7 C4th 673, 685.
If your client is trying to modify a support order, get guidance for the process in chapter 4 of CEB’s California Child and Spousal Support: Establishing, Modifying, and Enforcing.
Other CEBblog™ articles you may find useful:
- Can a Sperm Donor Be Required to Pay Child Support?
- Preparing for Child Custody Problems
- Does Bankruptcy Affect Support Obligations?
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