Life can change in a hurry and expenses add up fast. That can certainly be true when you’re divorced with physical custody of your children. You may be dealing with childcare expenses, private school tuition costs, medical bills, and a whole lot more. Sometimes you wonder how you’ll make the books. You feel like your ex could help out more than they do, and you find yourself asking how to get an increase in child support payments.
The state of California does allow for an increase in child support payments, via a support modification order. However, the parent requesting the change must demonstrate a substantial change in circumstances from when the original custody and support plan was finalized in court.
Therefore, since the support plan you are working with was approved by a court to begin with, it will have a strong level of credibility with the judge reviewing any modification request. Given that, the best way to understand if you have a case for support modification, it’s important to understand how you arrived at the original plan.
How Child Custody Payments Are Determined in California
The program for child support uses basic principles that can apply in all cases. The law presumes that the primary obligation of parents is to support their children until the kids reach the age of 18. The law further presumes that both parents share in this obligation.
These are very broad principles that can (and do) apply everywhere in the United States. Here in California, these principles are implemented with the understanding that our cost-of-living is higher than most other states. This means a C-level executive in California making child support payments in Pasadena is probably paying a higher amount than a person doing the same job with the same family situation somewhere in Mississippi.
California has issued child support guidelines that seek to bring consistency to payment plans. A calculator that a state has made available online can be used to get a sense of where you and your ex should be in terms of support payments. Even with this calculator, every family situation is a little different, so the entire process of coming up with appropriate child support payments is necessarily complex.
It will be presumed that children have the right to share in the lifestyle of their parents. If the parents are considered to be “extraordinarily high-income earners” (a term that state uses but does not define with any specificity), the support plan will seek to ensure the children are a part of that materially comfortable lifestyle.
What we can tell you is that the state will consider how much income both parents earn. Factors like available tax deductions, costs of child care, education, medical care, and the value of all other assets considered in the property division settlement will be given consideration.
When the final support plan is developed, it is presumed to be correct. This is an important presumption in law. It means that the burden of proof rests with the one seeking modification.
Changed Circumstances That Are (And Aren’t) Considered Substantial
Let’s consider some hypothetical scenarios…
The Ex Started Making More Money
Your spouse worked as the Chief Technology Officer for a firm here in southern California. Shortly after your divorce five years ago, they launched their own tech company. It’s taken off. Their earnings are at least equivalent to what they were making on salary. Furthermore, they run the tech business out of their house and have taken advantage of the flexibility to move up to Bakersfield where the cost of living is lower.
Meanwhile, you’re still working in pharmaceutical sales. You’re making a good living to be sure, but your circumstances have not changed. Can you get an increase in child support?
You will at least have a case. Your children have a right to share in the lifestyle of their parents. If you and your spouse were still together, the kids would benefit from the success of the tech startup. Logically, they should still get to benefit from it now, even if you are the one with primary physical custody.
One area that could trip you up though, is how visitation is being handled. Your ex might counter that they can no longer see the kids every weekend. They might counter your support modification order with a request for a changed visitation order. How it all gets worked out will be up to your lawyers and the courts.
You Got Laid Off
The pharma company you work for just did major downsizing, they cut the sales force in half and you were a part of the carnage. Through no fault of your own, you now have a lot less income than you did previously. Can you get an increase in child support?
It’s possible, but not a guarantee. There are several factors a court will have to consider. While this change in circumstances is certainly substantial, it may also be temporary. Courts are far less likely to change a support order based on temporary circumstances.
The court will also consider the practical impact that your loss of income has on the children. The kids have the right to share in your lifestyle, and that presumes the “right” to share in the downturns, so long as their needs are being met. One factor the court will consider in this regard is the capacity your ex has for making increased payments.
You Took Less Money
You left your job to go work at a nonprofit organization that you’ve supported for years. Your salary has taken a hit because of it. Can you get increased child support to make up the difference?
We don’t want to say never…but we will tell you not to get your hopes up. Let’s revisit the core principles of the original support agreement–parents’ primary obligation is to their children. Off that premise, the court based on agreement on the salary you made in your current job. If your departure from that job was voluntary–no matter how good the reason–it will likely be seen as your responsibility to assume the financial costs that come with it.
Now, this doesn’t mean you can’t reach out to your ex and talk to them about increasing the support payment so you can take this new job. Maybe support for this non-profit was one of the big things you shared in common and communication with your ex is still good. You are certainly welcome to do this, and if your ex is open, you can ask a court to ratify the agreement you reached. But getting the court to act unilaterally on your behalf is not likely.
Big Tuition Costs Are Coming
Your 10-year-old son was accepted at Sequoyah School. Or your daughter, entering her freshman year of high school, got into Westridge. You’re looking at some hefty tuition payments. Can you get increased child support payments based on this?
Strictly speaking, yes. The ex shares responsibility for the kids. Attending a good private school would qualify as the children sharing in the lifestyle of their parents.
The one caveat might be this–a well-drafted custody and support plan will allow for expenses that are reasonable and foreseeable. Was your original payment designed with the idea that the kids would eventually be going to these schools (or somewhere similarly priced)? If so, your ex may be able to argue against increased child support on these grounds.
The Process for Requesting Increased Child Support in California
Your attorney will need to file a Form FL-150 or Form FL-155 to petition the court for a modified support order. You will need to present all relevant financial documents that support the substantial change in circumstances. The time it takes the court to finalize any approved request can vary, but it’s wise to come in with an expectation of six months.
In that regard, it’s important to remember that child support is not retroactive. That means if you waited for a year after your ex’s new business started booming, the judge cannot backdate the payments to cover for that missing year. The judge can backdate higher payments to the day you filed, but not before.
That means if you believe you have a case for increased child support, the time to file is right now. Gille Kaye Law Group, PC can help. Our attorneys have decades of experience fighting for our clients in financially complex family law cases. If you believe your original divorce settlement has been rendered outdated by current circumstances, don’t hesitate to reach out. Call us today at (626) 340-0955 or contact us online to set up an initial consultation.