Q: Our divorce agreement requires my ex and I to exchange year-end tax information every year and to re-calculate child support guidelines. This is the first year that the support amount changed, because our oldest son graduated from high school and is working full time. She doesn’t like that she is going to get less but it seems pretty clear to me that all I do is just pay the new guideline amount.
Can I just start paying the new amount?
A: Lets start with why you think there is a change before we talk about when to make it. Is your oldest son still living at home with your ex? If so, does he earn enough that he could move out and live independently? If not, he is not really emancipated but, rather, falls into that middle ground of working but still being dependent on his parents for financial support. If your ex still needs to cover his housing, you still need to contribute to that cost by way of paying child support. You may still be entitled to some reduction on account of his being over the age of 18, but not as much of a reduction as you would get if he were fully emancipated. I encourage you to review the guidelines worksheet carefully to be sure your calculations accurately reflect his reality.
If he is choosing to live with your ex but is fully capable of moving out and paying his own way, then you have an emancipated child for whom you no longer have an obligation to pay support. This scenario creates a more significant reduction in child support and seems to be what you expect.
You could take the position that you have a self-modifying agreement if the court approved your agreement and it says you will re-calculate support and begin paying the new amount. However, that is not without risk. Some judges may take the position that you can only really change the support amount by filing a complaint with the court and getting approval for the change. Supplemental Rule 412 allows people to file a joint petition to change child support. It is a simple, easy form that, when submitted to the court, is acted on administratively so you do not have to go to court. The catch being you and your ex will also have to file current financial statement forms with the court so the judge has all the necessary information and, as well, your child support guideline worksheet.
Because she does not want less money, your ex may not cooperate in the joint process and an attorney may advise her to file a complaint for contempt if you unilaterally change the child support amount without a judge’s approval. A judge might find you have an obligation to keep paying the old amount until a new order is entered. To be safe, file for a modification and ask for a retroactive reduction to the date you serve her.
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