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Blog

MAY
28
2018

Self help in modifying child support is rarely a good idea. In most contested cases, courts have little discretion in the amount of child support they can award because adherence to the Child Support Guidelines formula for calculating support is required. Likewise, the Guidelines set out the criteria and procedural requirements for modifying a child support award. A party who fails to adhere to these requirements can get burned with an arrearage judgment.

In State ex rel. Nichols v. Songstad, 2018 WL 2253209 (Tenn. Ct. App., Apr. 17, 2018), Father had two children with Mother at the time of the divorce in 2006. The older child graduated high school in 2011 and Father reduced the amount of child support he was paying by one-half. Mother accepted the reduced payments until the younger child was emancipated in 2014. She then turned to the State for assistance in collecting child support. Father had an arrearage judgment entered against him for almost $30,000 by the Juvenile Court in Shelby County, Tennessee.

Father’s main argument in the appellate court was he could, without court approval, reduce child support because a parent has no legal duty to support an emancipated child. The secondary argument was a pro rata reduction of child support was not the same as a “modification” under the Guidelines and, therefore, the Guidelines procedure for modification did not have to be followed. The Court rejected these arguments and held a change to the Guidelines in 2005 removed emancipation of a child as a “significant variance” entitling a paying parent to child support modification. Under the current version of the Guidelines, a “significant variance” now exists if there is a 15% difference between the current amount of child support and the proposed amount of child support using the Guidelines’ formula. The Court went on to state it could not give Father credit against the arrearage because he had never filed a petition to modify the child support order or presented any evidence of what the proper amount of child support should have been after the emancipation. Thus, the Court had no evidence in the record which would support a modification. The Guidelines prohibit retroactive modification of child support. If a modification is justified, it usually can only be backdated to the date the petition to modify was filed.

Calculating changes to child support is not as simple as the Father thought in this case. The calculation requires more than just knowing the number of children at the time of the divorce. The court must also look at the current income of the parties, health insurance premiums and deductibles, recurring uninsured medical expenses, childcare expenses, new support obligations to other children, unique circumstances justifying deviations from the Guidelines, etc. Modifying child support is a potential minefield for both parents. Legal counsel is strongly encouraged.

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