Post-decree Modification

A court may modify a previously issued order for child support or spousal maintenance if there has been a “substantial change” in a party’s financial circumstances which makes the existing child support and/or spousal maintenance award “unreasonable and unfair.” Examples of changes in circumstances which may be the basis for modifying support or maintenance include:

1. a substantial increase or decrease in the income of the person paying support or maintenance (the “obligor”) or of the person receiving support or maintenance (the “obligee”);
2. a substantial increase or decrease in the needs of the obligor or oblige or the party’s child or children;
3. receipt of AFDC benefits;
4. a change in the cost of living;
5. extraordinary medical expenses of a child not previously provided for;
6. the addition of or a substantial increase or decrease in work related or educational related child care costs; or
7. the emancipation of a child.

The person seeking the modification has the “burden of proving” that the support or maintenance order should be modified. A request for modification may only be made retroactive (effective back to) the date the motion for modification is served.

The law firm of Katz, Manka, Teplinsky, Graves & Sobol, Ltd. has experienced attorneys who can either bring a motion to modify on your behalf or defend against a motion to modify brought against you.

Motions to modify child support

An obligor may seek a modification of child support obligation when he or she loses employment or otherwise experiences a significant reduction in his or her income. Generally, the reduction in income must result in a new child support award which is at least 20 percent and $75 lower than the existing order before the court will reduce the award amount. An obligee opposing a reduction in support based upon the obligor’s reduced income will often argue that the decreased income is intentional or short term. This is especially true if the obligor is self-employed. A court may deny a motion to reduce child support if it finds that the obligor has intentionally reduced his or her income, has not taken reasonable steps to find new employment, or has other financial resources available to continue to pay support.

Motions to modify sometimes are needed after the emancipation of a minor child (the child graduates from high school and is eighteen years old), especially if the prior order establishing child support doesn’t provide for an automatic reduction in support.

An obligee may seek a motion for modification of child support if he or she experiences a significant reduction of his or her income, if he or she believes that the obligor has experienced a significant increase in his or her income such that the application of the guidelines will result in a new child support obligation at least 20 percent and at least $75 higher than the existing child support award, or if the costs of caring for the minor children have increased significantly. Substantial changes in child care expenses or medical expenses may also be grounds to increase the child support award.

In January, 2007, the Minnesota Child Support Guidelines were modified based on income sharing, with each parent’s gross income factoring into a determination of child support. The current law limits the basis for motions to modify child support under the new guidelines until January, 2008. At that time, however, the new support guidelines may provide the basis for a significant number of child support modification motions, based upon the possibility that application of the new guidelines will result in changes of at least 20 percent and $75 in many parent’s monthly child support obligations.

Motions to modify spousal maintenance

A person who is receiving spousal maintenance, the obligee, may ask the Court to modify the maintenance award by increasing the amount and/or extending the length of the award. Many times this occurs when an obligee is awarded rehabilitative maintenance and is unable to complete retraining or is unable to find suitable employment following the divorce to fully support him or her. Also, if the obligee’s monthly expenses increase and/or the obligor’s income correspondingly increases, the court may increase the maintenance award.

An obligor may also seek a modification of spousal maintenance if the obligor has had a financial setback and a reduction in income or increase in expenses. An obligee opposing a reduction in maintenance based upon the obligor’s reduced income sometimes will argue that the decreased income is intentional or short term. This is especially true if the obligor is self-employed. A court may deny a motion to reduce maintenance if it finds that the obligor has intentionally reduced his or her income, has not take reasonable steps to find new employment, or has other financial resources available to continue to pay maintenance. An obligor may also seek modification if the obligee has a substantial increase in income, thus reducing the need for spousal maintenance. Also, if a spousal maintenance obligee establishes a new relationship, and his or her new partner moves in with the obligee reducing the obligee’s needs, this may form the basis of a motion to modify.

Remarriage also in most cases terminates the obligation to pay spousal maintenance. If your former spouse is receiving his or her maintenance through wage withholding administered by the county, it may be necessary to serve a motion to obtain a formal order terminating the obligation.

Cost of living increases

In most cases, it is possible to implement a cost-of-living increase (COLA) to child support and spousal maintenance every two years by simply serving a notice upon the obligor, which includes a calculation indicating the change in the cost of living that has occurred since the last order, what percentage change in the obligor’s obligation this represents, and what new amount of support or maintenance will be due after applying the COLA. Once served, the obligor has twenty days to schedule a hearing if he or she objects to the COLA modification. A defense to a COLA request is that the obligor’s income has not changed more than the cost of living or that the obligor has not received a cost of living increase to his or her income.

Procedure

Other than a request for a COLA modifications, in order to modify an award of child support or spousal maintenance, a formal motion must be filed with the court explaining the basis for the requested change and documentation to support the request. Child support motions are heard by “Child Support Magistrates.” Child Support Magistrates only have the authority to hear support cases. Motions to modify spousal maintenance or combined motions to modify support, maintenance and/or other requests for relief are heard by a district court judge or referee. Generally, these motions are heard based upon the affidavits of the parties, although the Court does have the discretion of scheduling an evidentiary hearing and taking testimony from the parties and other witnesses.

Whether you are attempting to increase, decrease or terminate the award of maintenance or child support, or if you are opposing the change, the parties will in most cases be required to exchange detailed financial information, including income tax returns, paystubs, bank records and budgets. This exchange of information, called “discovery,” usually will take place before the motion is actually heard by the court, but occasionally it is necessary to have an initial hearing to request more information. If one of the parties is self-employed or the parties’ finances are complicated, it may be necessary to engage the services of a forensic accountant to assist in determining the party’s incomes and needs and to assess the tax implications of the payment of support and maintenance.

The attorneys at Katz, Manka, Teplinsky, Graves & Sobol, Ltd. have had decades of success handling post-decree modification motions, on behalf of both obligees and obligors.