THE MCMILLIAN LAW FIRM - PASSIONATELY SERVING THE CITIZENS OF THE LOW COUNTRY IN FAMILY COURT
One constant in life is that there is always change. Change comes in many shapes and forms, and over time change can fundamentally alter your needs and those of your children. As a family law attorney, it is routine to see the living situation of my client or the ex change significantly after the divorce or legal separation became final. These changes can be behavioral or can be social, but more times than not the changes that occur in the years after a couple end a relationship is financial. These financial changes do have a potential impact on the amount of child support that one parent may owe the other in the years to come.
The clients sometimes eliminate the subtlety of the topic and get right to the point: “Can I get my child support payment increased?” or "Can I get my child support payment decreased?"
The short answer to this question in Charleston, SC and Summerville, SC is "yes", but there are very specific criteria that must be met in order to modify an existing Court ordered child support payment.
TO CHANGE THE AMOUNT OF CHILD SUPPORT PAID, ONE MUST SHOW A "SUBSTANTIAL CHANGE IN CIRCUMSTANCES"
South Carolina case law developed over the last fifty years or so has laid out the specific parameters that must be met in order to change any Court ordered child support payment. South Carolina Family Courts require that the party seeking to change the support amount (whether to increase or decrease) must show that a "substantial change in circumstances" has occurred since the original award that warrants a change in the amount of support to be paid into the future.
There is even South Carolina case law on point that states for any change in the child support award to be substantial, the change in the award that is sought must result in an increase or decrease in the support payment of at least 20%.
For Example: H pays W $100.00 per month in child support for their child. W takes H into family court to seek an increase in support payments since H has a new job and increased income. In order for the Family Court to award an increase in support payments to W, the Child Support Guidelines would need to reflect that, once the new financial information for H and W are plugged into the formula, W would see an increase of at least $20.00 in monthly child support ($20.00 being 20% of the original child support award of $100.00)
REASONS THAT SUPPORT A SHOWING OF "SUBSTANTIAL CHANGE IN CIRCUMSTANCES"
- The needs of the child have changed: Significant changes in the mental or physical condition of the child could support an increase in child support payments. For example, as your Charleston child support lawyer, I would seek an increase of child support on behalf of any parent if the child suffers a serious medical condition after the separation of the parents, or if the child were to become disabled through an accident. Upon permanent disability, the Family Court may extend child support beyond the age of 18 for the child.
- You or your ex experience a significant change in financial earnings: As a Charleston Family Law lawyer, most clients who hire me for child support modifications do so to seek a decrease in payments. The underlying issues in the vast majority of these cases is that the paying parent has lost a job involuntarily (lay-off), suffered a disability, had hours cut back to part-time, and in some cases the parent has gone back to school. In the same vein, as a Charleston Family Law attorney, I may be able to get an increase in your child support payments if the other parent has become employed, received a pay increase / promotion, works more hours, or has an increased earning capacity.
- The supported child has left the home and has been emancipated / no longer lives with the recipient parent: In South Carolina, a minor child can seek to be judicially emancipated from his/her parents (this is a fancy way of going to court and being declared an adult for legal purposes). This often occurs in the context of 16 and 17 year olds who, otherwise would still be of age to receive child support, seek emancipation for the purposes of marriage. If you are paying child support on a child who becomes judicially emancipated and/or marries and leaves the household of the recipient parent, you may file for child support reduction in Family Court.
- The Family Court has granted a motion to modify child custody. The number of “overnights” that your child has with each parent under your child custody order is one of the more significant factors in calculating SC child support. Since a change in child custody usually changes the number of overnights, your judge may change your child support payment when your judge changes child custody.
- The Recipient Parent No Longer Receives Alimony: If a parent is in the position of receiving alimony from an ex in addition to child support, the recipient parent of the child support may seek an increase in child support if and when the alimony is terminated. Alimony is included as “income” when child support is calculated. So in theory, when alimony stops, the recipient parent has suffered a decrease in "income" according to the Child Support Guidelines. With the drop in your calculable income, you may qualify for an increase in the amount of child support that you receive. Since your child support will not automatically increase when your alimony decreases or ends, as your Charleston Family Law attorney, I must file a motion to increase child support.
- You or your ex has been called to military service: South Carolina law allows for a temporary reduction of child support when a parent has been called to temporary military service.
Of course the above list is not all inclusive but reflects the major reasons why clients seek me out to pursue a modification of child support. If your situation is not described above, the you should consult with a Charleston Family Law attorney immediately!
REASONS WHY THE FAMILY COURT WILL DENY A MODIFICATION OF CHILD SUPPORT
Family Court judges in Charleston, Berkeley, and Dorchester County carefully review each and every request to modify a child support award. There are primarily two reasons why judges take these matters so seriously: first, they may be changing a court order that was issued by another judge; and second, the legal effects of any modification must reflect what is in the best interests of the child consistent with the Child Support Guidelines.
So that being said, why would a Family Court judge refuse to modify a child support award:
- The reason for the requested change could or should have been anticipated by the parties when the original child support order was entered.
- The person requesting a reduction does so because he/she is behind in payments, yet the Court feels that he/she can reasonably make the current child support payments.
- The request for a change in child support was filed primarily because the other parent has remarried or as a measure of vindictiveness.
- The parent seeking the change in child support has voluntarily left a job, switched to a lower paying job as purposeful underemployment, or stopped looking for a job (if unemployed).
- The parent seeking a reduction in child support continues to enjoy the same lifestyle despite changes in marital status and finances.
THE MCMILLIAN LAW FIRM - YOUR CHARLESTON, SC AND SUMMERVILLE, SC FAMILY LAW ATTORNEY
Seeking modification of a child support order is a very nuanced event in Family Law that someone should not attempt to navigate without legal counsel by their side. A lack of understanding of the underlying law and necessary evidence to support a modification can have tremendous ramifications on the final disposition of your child support request. If you need immediate relief from the Family Court or need answers from a Charleston and Summerville Family Law Attorney, please call us immediately!!
If you live in Charleston, Mt. Pleasant, Summerville, North Charleston, Moncks Corner, James Island, West Ashley, Folly Beach, Johns Island, Walterboro, or any of the other fine communities of the South Carolina Low Country, do not wait another moment. Act now!! Contact The McMillian Law Firm at 843-900-1306 or email us at [email protected] and scheduled your free Family Law consultation today.