Ex-husbands and ex-wives need to be conscious of the modifiability of support orders contained in their divorce judgments. There are three basic rules to keep in mind. First, it is impossible to agree in a Marital Settlement Agreement that child support is not modifiable, and a judge can’t order nonmodifiable child support. It’s illegal. Second, an ex-husband or ex-wife who wants to modify child support or spousal support must show a change in circumstances since their support judgment was entered. This rule is based on an old idea that judgments are final and can’t be changed, called stare decisis in Latin (“the thing has been decided”). Third, spousal support and child support can only be modified retroactively to the date the party seeking modification files his or her Order to Show Cause asking for the modification.
The first rule prohibiting nonmodifiable child support is self-explanatory, although it bears a couple of comments. First, if you are the payor parent, don’t kid yourself that your child support will stay the same stay until the children hit eighteen, particularly if your ex is on the ball. Usually after a judgment is entered you can’t force your ex, for example, to divulge anything unless you file an Order to Show Cause. Here the legislature has made an exception for you. Once a year you can send your ex an Income and Expense Declaration, and your ex must (and can be forced to) fill it out and send it back. You don’t have to spend money filing an Order to Show Cause without any idea whether it will be granted. The second rule requiring changed circumstances for modification immediately prompts the question, how much change is enough? Here are a few illustrations.
(A) For spousal support, cohabitation creates a presumption of changed circumstances, because two people sharing expenses normally reduces the expenses of each one. So your ex moves in with a person of the opposite sex, and “everybody knows” your ex is not just renting a room. However, at the hearing your ex produces monthly checks for rent and they both testify they’re not romantically involved and don’t share expenses. Unless you have the money for a private investigator to spend hours and hours with a video camera looking for torrid behavior, you’ll probably lose.
(B) An ex-spouse with a high timeshare percentage probably wins an increase in child support when one of the kids develops Special Needs, maybe partial paralysis after a car accident. Special Needs are added onto the child support figure kicked out by the computer, so your ex probably wins.
(C) The cleanest basis for a change in spousal or child support is a major increase or decrease in the income of one of the parties. This is easiest with regular employees who don’t earn commissions. It’s more difficult if they do. It’s most difficult if they’re self-employed, because self-employment provides many opportunities to hide income.
Disregarding the third rule limiting retroactivity of support modifications can be disastrous for a support payer whose income decreases substantially. This typically comes up with ex-husbands who are not paying attention or ex-husbands who feel guilty. The first group would rather ignore the whole thing, so when they can’t pay the whole amount they don’t pay anything. When the second group can’t pay the whole amount, they pay what they can and promise they’ll catch up later. Neither seeks a modification, which both could get. Time passes. Their ex-wives eventually seek judgments from the court for arrearages, and the husbands discover three things: (i) the arrearages have been earning 10% interest; (ii) it is illegal for the judge to reduce the arrearages or the accrued interest (they can only be spread out prospectively); and (iii) they are not dischargeable in bankruptcy. Some ex-husbands may become judgment debtors for life, a very unpleasant prospect.
California family law is a minefield. We go through it every day. You owe it to yourself to come in and talk to us before you separate so you know what may be coming. After it’s over when things get tough and you can’t make your support payments, don’t just agonize about it. Call us for an appointment to come in and talk to us right away so we can get them reduced for you as soon as possible.
San Diego Divorce Attorney Stanley D. Prowse is a California Certified Family Law Specialist. We welcome your legal inquiries.