Modifying Child Support or Periodic Alimony After Divorce
If you are settling your divorce case, it is important that you protect your right to seek a modification of your child support or periodic alimony payments after your divorce is over. Precise and careful language must be used in the settlement agreement, or a proposed final order, to make sure you are protected.
In settling a divorce, it is critical that the non-custodial not over-commit on support. It is best to expressly reserve the right to modify child support or periodic alimony – if the financial circumstances change. Atlanta Child Support Modification Lawyer Russell Hippe always protects his clients in this regard. He has handled numerous modification actions and has secured excellent results.
Strict Nature of Child Support and Periodic Payment Obligations:
Once a support order is entered, you have to honor this by law – make the payments on time – until there is another order entered by the court changing this. If you willfully fail to do so, you are at risk of being held in contempt. So, if for example, you lose your job, you should immediatelyfile a modification. Otherwise, you will run an "arrears" that will have to be paid at some point, and you will be at risk of being served with a contempt motion. And any modification order will not be retroactive to the date you lost your job. In the context of an arrears calculation in a contempt hearing, it is only retroactive to the date of service of the modification petition.
Private Agreement with Your Ex Spouse:
Private agreement between the parties to reduce or offset the court ordered child support or periodic alimony payments or compromise arrears obligations are generally not enforceable. See, Davis v. Davis, 251 Ga. 391(1), 306 S.E.2nd 247 (1983). Accordingly, the non-custodial parent paying child support or periodic alimony should be wary of any compromise or offset agreement with the ex spouse even if it is in writing.
Applicable Statutes for a Modification Action:
O.C.G.A. section 19-6-15(k) governs modifications of child support. O.C.G.A.section 19-6-19 governs the modification of periodic alimony. A lump sum alimony award is not subject to modification. Nor is a final property division award. See,Spivey v. McClellan, 259 Ga. 181, 378 S.E.2nd 123 (1989). However, the parties are free to contract between themselves regarding property allocation post divorce - but notregarding periodic support (as noted above).
Temporary orders on modification actions may be entered. Under both statutes, attorney's fees may be awarded to the prevailing party as the interests of justice may require.
Threshold - Material Change of Financial Status or Needs of Child or Children:
A modification is a new, separate action. The threshold is that, since the entry of the final divorce order, there has to be a material or substantial change in the income or financial status of either spouse or in the needs of the child or children. See, O.C.G.A. section 19-6-19(a) (this statute, pertaining to periodic alimony, does not expressly require a substantial change); 19-6-15(k)(this statute, pertaining to child support, expressly requires a "substantial change"). For example, one spouse has gotten a new job with higher income, lost a job or income, or where living expenses have been dramatically reduced, or where the ex spouse receiving alimony has moved in with someone in a "meretricious relationship", or where the needs of the children have changed due to health conditions or other circumstances.
If a parent has remarried, a trial court may not consider the income of a new spouse when determining the biological parent's child support obligation. See, Blumershire v. Hall, 329 Ga. App. 449, 765 S.E.2nd 647 (2014).
Repeated Actions to Modify Support: Generally, a party must wait two years from the entry of a prior final order on a petition to modify child support or periodic alimony payments. See, O.C.G.A. sections 19-6-19(a) and 19-6-15(k). The exceptions, pertaining strictly to child support, are:
(A) A noncustodial parent has failed to exercise the court ordered visitation;
(B) A noncustodial parent has exercised a greater amount of visitation than was provided in the court order; or
(C) The motion to modify is based upon an involuntary loss of income.