When to Modify Child Support
A tricky situation can occur when parents want to modify child support amounts that were ordered by the court. Often, the Nevada courts will take into account different financial situations when making these arrangements. But any custody arrangements that were scheduled are subject to change. To accommodate these changes, Nevada has created rules that identify when to modify child support.
To modify child support, a change in circumstances must occur. Typically, the majority of modified child support cases arise under three circumstances:
- at least a 20 percent change in a parent’s gross income
- three years since the last child support order
- a change in custody.
If there has been a 20 percent change in the income of the parent subject to child support, then a parent can request modification. If the arrangement was made for primary physical custody, this affects the parent without primary custody. For cases of joint physical custody, a change in either parent’s monthly gross income would qualify. The change can be an increase or a decrease in income.
A child support modification is not automatic. You must request a modification either by discussing this option with the other parent, or by filing a “Motion for Child Support Modification”. However, you should always discuss modification with the other parent before filing a motion. If you know the gross monthly income of both parents, you can figure our child support with our online child support calculator or contact one of our skilled divorce attorneys to answer any questions.
The most common situations that our firm’s divorce attorneys encounter deals with the change of income. For example, one parent may lose a job or a parent may receive a promotion. Losing a job is a valid reason to ask for a decrease in child support, unless the parent in question quit or was fired. The court may not adjust child support based on the lack of income because they feel that parent could be working.
The court will not typically assign income for work force reduction or layoffs. However, courts may consider unemployment benefits to calculate child support. Often, clients will have temporary changes like seasonal jobs, transitions to new employment, or a one time bonus. For these instances, many divorce attorneys don’t recommend that you modify child support even if the change is 20%. By the time you have your day in court, your income will be back to normal.
Under Nevada law, parents can request a child support review every three years. If three or more years have elapsed, you can ask your former spouse to submit new paystubs to calculate a new child support figure. A 20 percent change in income is not required. Either parent can ask for the review.
Again, the court will not make the modification automatically. You must request the modification. The other parent must receive notice and the court should review the financial documents before a judge can order a new child support arrangement.
Typically, this happens with parents exchanging financial paystubs and other documents proving monthly income. If the other parent refuses to share these documents, a divorce attorney may suggest that you proceed with filing your motion. The judge may order reimbursement to you for any attorney fees spent.
In cases of joint physical custody, Nevada uses an “offset” when calculating child support. Primary physical custody situations typically contain no offset. If the custody arrangement changes from joint physical to primary physical (or vice versa), a new support calculation should be made.
For example, you may be paying $787 in child support and your former spouse originally had primary physical custody. However, the situation has changed and you now have joint physical custody. The judge should adjust your $787 by subtracting your former spouse’s obligation from yours. (For more explanation on this calculation, we recommend you review Calculating Child Support or contact one of our divorce lawyers for more information).
Many judges consider this sort of change in custody as a change in circumstance, similar to the 20 percent change income. Just like with a the change of income, you should ask the other parent to stipulate to the change in child support. If they don’t agree, then you should file a motion.
What is the first step for a modification? You have two paths: a stipulation or a court modification.
A stipulation is where both you and the other parent have exchanged financial documents, calculated the amounts, and filed the new amounts with the court. This is still a legal process. You must file documents with the court agreeing to the new child support calculation. Verbally agreeing will not work. If you verbally agree to the change, it may not be legally enforceable. The divorce attorneys in our firm have seen horror stories where parents verbally agreed to a reduced amount and then a parent decides to enforce the previous child support order years later.
In a court modification, one parent files a motion, a judge reviews evidence of income, and the judge orders the new child support amount. Before filing a modification, you must first reach out or respond to the other parent’s motion. If a parent resists this attempt to modify support amicably, the court may award attorney fees to the non-difficult party. The resistance must be “willful” and without justification. A parent who believes the request is without merit should still provide their financial documents. You can exchange your financial documents and disagree with signing stipulations.
Another area of modification is deviation. Nevada has a standard child support formula. However, there are times when the judge may deviate from these calculations. Typical reasons to deviate are: a child with special needs, cost of health care, and cost of child care. For more details on reasons to deviate, please review Deviating Nevada Child Support.