Modifying Child Support

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Changing Child Support Payments

Modifications (changes) to child support do not happen automatically. One of the parents must request that the court change the child support order, using a written “motion” – a formal request to the court. Circuit court forms are available on the Maryland Courts website.

Either parent (the parent who pays or the person who receives the payment) may ask the court to change the order while the child is under 18 years old.

The court that makes the original child support award can modify the order if the parties’ situations materially change. “Material” means that the change matters and is relevant to the situation. A court will need a clearly indicated change in the parties' circumstances, needs, and financial condition to change the child support order.

 

What situations might cause a change in support?

During the years a child support order is in place, the parents’ circumstances may change many times. When seeking to modify child support, you must show that there has been a significant change in circumstances since the last child support order was issued. Maryland courts refer to significant changes in circumstances as “material” changes. 

A material change includes when a parent owing child support meets or no longer meets the following criteria:

  • lives with the child and is contributing to the child's support, OR
  • is unemployed, has no financial resources to pay child support, and
    • is incarcerated or expected to remain incarcerated for the remainder of the time that the parent has a legal duty to support the child,
    • is institutionalized in a psychiatric care facility and is expected to remain institutionalized for the remainder of the time that the parent has a legal duty to support the child,
    • is totally and permanently disabled, is unable to obtain or maintain employment, and has no income other than Supplemental Security Income or Social Security Disability Insurance benefits, or
    • is unable to obtain or maintain employment in the foreseeable future due to compliance with criminal detainment, hospitalization, or rehabilitation treatment plan.

Read the law: Md. Code, Family Law § 12-202

Other changes can be material changes for purposes of a child support modification. For example, in Maryland, if one parent's income has changed (either gone up or down) by at least 25%, this is usually enough of a change to require changing the support order. You can request a modification if your income has changed in a lesser amount, but you are not guaranteed a change in the support order. Changed circumstances can also arise from changes in the child's needs. For example, if the child becomes sick or disabled, the court can increase the amount of support.

Sometimes, time passing alone changes circumstances. For example, as a child grows older, buying clothes, food, and other items becomes more expensive. More expenses may justify increasing child support payments.

Support can also be reduced if the paying parent can show why this would be fair. For example, support payments may be reduced if the parent who has custody over the child inherits money, gets a large raise, or otherwise has an increased ability to support the child.
 

 

Are verbal changes OK?

The best idea is to file a motion for modification with the court so that the child support order matches the agreement between you and the other parent.

Do not make the mistake of modifying child support based on an oral agreement, or otherwise agreeing to a payment that differs from the court order. This can lead to future problems.

The problem with oral agreements is that they are often vague in ways that the parties do not realize at the time. People’s memories and understandings of the situation may differ. Any agreement you make to modify child support should be put in writing so there is no confusion later.

For example, the following situation is very common:

  • Under their child support order, Peter paid Alice, the mother of his son, $400 per month in child support. When Peter was laid off, he told Alice, "I just got laid off. I can't afford to pay $400 right now." Alice responded, "Okay. Pay $100 for now."
  • Ten months later, Peter got his job back and began paying $400 in child support again. During his layoff, Peter had made 10 payments of $100. Alice called and told Peter she expected him to pay the $3,000 he had not paid during the layoff. Peter replied that he did not owe the money because they had agreed to the child support reduction during his layoff. Alice disagreed. She claimed that she had not given up the right to $400 a month but had merely let Peter pay the full amount later, after he was rehired.
  • When Peter said he would not pay, Alice took him to court. The judge ruled that the evidence did not support Peter's claim that he was excused from paying the full amount of child support during his layoff. The court ordered Peter to pay the $3,000 to Alice at the rate of $100 a month, in addition to the usual payments of monthly support. Peter now has to pay $500 per month in child support payments until the $3,000 is paid off.

 

How to ask to change your child support order

There are two ways you can try to change a child support order.

  1. If your payment goes through the Maryland Child Support Administration
    • Once every three years, either parent may ask the Office of Child Support Enforcement to review the child support order for possible modification. If you request a review and modification, you should put your request in writing and keep a copy for yourself as proof that you made the request. Explain why you are requesting the review of your order, sign and date it, and include your child support case number and other identifying information on the request.
  2. If your payment does NOT go through the Maryland Child Support Administration

 

Voluntary impoverishment

A parent cannot avoid child support obligations by not making enough money on purpose. This is called voluntary impoverishment. In such a situation, the parent with a support obligation is making a free and conscious choice to be without adequate resources (not enough money) to meet their obligation. That is, the parent’s lack of resources is not compelled by factors beyond their control.

If the court finds a parent owing child support has “voluntarily impoverished” themselves, the court may “impute income” to the parent. This means that the court child support is based on determining the parent’s potential income, rather than their actual income.

To decide whether to “impute” income to the parent, and how much, the court will look at several factors, including but not limited to:
 

  • the parent's age, physical and behavioral condition, educational level, special training or skills, literacy, residence, occupational qualifications and skills, employment and earnings history, record of efforts to obtain and retain employment, and criminal record and other employer barriers,
  • employment opportunities in the parent's community, including the status of the job market, prevailing earning levels, and the availability of employers willing to hire the parent;
  • the parent's assets;
  • the parent's actual income from all sources; and
  • any other factor that impacts the parent's ability to obtain funds for child support.

Read the law: Md. Code, Family Law § 12-201, § 12-204(b)

Read the case: St. Cyr v. St. Cyr, 228 Md. App. 163 (Court of Special Appeals, 2016)

Maryland courts do not consider a parent being in jail or prison to be “voluntary impoverishment” unless the parent committed the crime intending to avoid paying child support.

Read the case: Willis v. Jones, 340 Md. 480 (Court of Appeals, 1995)

 

Parents in jail or prison

The law on this issue changed on October 1, 2012. Because changes to the law do not affect sentences issued prior to law taking effect, this section is divided into two parts. The first part covers current Maryland law. This law applies to all sentences issued after October 1, 2012. The second part covers the state of the law prior to October 1, 2012.  The information in this part will apply to all sentences issued before October 1, 2012.

If you were sentenced AFTER October 1, 2012:

For all child support payments:

Under some circumstances, when a parent with a child support obligation receives jail time, the parent does not have to pay child support payments. Also, the unpaid child support payments will not accrue arrears (meaning the unpaid payments will not pile up) while the parent is in jail or prison and 60 days after release. This only applies to:

  1. A parent with a child support obligation who has received a sentence of 180 consecutive calendar days (in a row) or more, on or after October 1, 2012; and
  2. The person is not on work release and cannot afford to pay the child support payment while they are in jail or prison; and
  3. The person did not commit the crime intending to be put in jail or prison to make himself or herself unable to pay the child support (voluntary impoverishment).

The child support order still exists even while payments are not due. Sixty (60) days after the parent in jail or prison is released, the parent must begin paying child support payments again, as the child support order requires. The parent will not owe the payments missed while they were in jail or prison.

If your child support payments are paid through the office of Child Support Enforcement:

The Office of Child Support Enforcement can suspend arrears (unpaid payments) that have accrued (built up) during eligible sentences that began on or after October 1, 2012, while the parent was in jail or prison. The parent in jail or prison will not have to pay child support payments during an eligible sentence that began on or after October 1, 2012.

After being sentenced to jail or prison, the parent does not need to take action regarding their child support payments. The Office of Child Support Enforcement can adjust the child support account of the eligible parent in jail or prison on its own, without the parent having to file a motion with the court. But first, Child Support Enforcement will send written notice to the person who receives the child support payments. The receiving person may object to the adjustment of the child support account.

Read the law: Md. Code, Family Law § 12-104.1 (effective October 1, 2012)
 

If you were sentenced BEFORE October 1, 2012:

If a parent with a child support obligation goes to jail or prison, the child support they owe will continue to pile up while they are there. These missed payments are called “arrears.” To stop or reduce the child support while in jail or prison, the parent must file a motion to modify child support.

The parent will not be able to go back and change past amounts of child support owed once those payments are late. The imprisoned parent should notify Child Support Enforcement and the Court that they are in jail or prison and request a child support modification. Be sure the child support and court case numbers are on the requests and keep a copy that has the date on it, as proof of sending them.

The child support obligation of a parent who is in jail or prison can be modified as a “temporary material change of circumstances.” The obligation cannot be completely ended because a child is legally entitled to support from their parent.

The modification to child support remains only during the time the parent is in jail or prison and payments will become due again after the parent’s release. The court may modify a child support award subsequent to the filing of a motion for modification and upon a showing of a material change of circumstance.
 

Read the case: Wheeler v. State, 160 Md. App. 363 (Court of Special Appeals, 2004)

 

 

Source
Reviewed by Karen Thomas, Esq., Access to Justice Department, Maryland Judiciary; Updated by Web Services Librarian.
Source URL: https://www.peoples-law.com/modifying-child-support

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