THE MCMILLIAN LAW FIRM SERVES THE FINE CITIZENS OF CHARLESTON, SC AND SUMMERVILLE, SC IN FAMILY LAW AND DIVORCE
The modern world is a very polarized place. Race, financial status, political affiliations, and all things that can divide us seem to dominate all conversations through all media, both personal and public. This polarization has filtered its way into the practice of Family Law as well. Nowadays, on the subject of child support, there seem to be two camps of public opinion about individuals who are not paying child support, the vocal "deadbeat dad" point of view and the "I can't pay that much" point of view. Once in a blue moon, each respective side of this argument will be vindicated with a specific case that is then held up as proof of the norm. However, like all things in life, the truth about paying child support, more times than not, is somewhere in the middle.
That leads into the topic of this article. What can someone do if they legitimately can't afford to pay their child support. We are familiar with the consequences of failure to pay (free accommodations courtesy of the state). How does someone get a hold of this issue when there are legitimate life issues, such as a loss of a job, a disability, etc., that forces someone to seek a reduction of their child support obligation.
SUBSTANTIAL CHANGE OF CIRCUMSTANCES
South Carolina courts have routinely ruled for a few decades now that to support any decrease in a child support obligation, the person seeking the modification must show a substantial change in circumstances. This standard is very fact specific and prone to different interpretations depending upon the specific Judge that is hearing your case. South Carolina case law though, from the Supreme Court down through the trial level at Family Court, has left a body of law that defines exactly what a substantial change in circumstances would be. Things that would be considered a substantial change in circumstance include:
- Loss of a job through no fault of your own (see the subtle difference here between being laid off versus a firing)
- Employed and making substantially less than when the original child support order was issued
- Children that were being supported through the original order now live with the paying parent
- Ability to work has been reduced by a medical condition, injury, or disability
- The child is over the age of 18 and has finished high school
- This is not always available if the child is a special needs child or the child is attending college and the original order anticipated support being paid for these extended years.
- A child under the age of 18 has married or joined the military (Emancipation)
Note that this list is not an exhaustive list, and this type of family court litigation is very fact specific and could lead to additional items being considered as substantial changes.
WHAT TYPE OF EVIDENCE IS NEEDED TO SUPPORT A SHOWING OF SUBSTANTIAL CHANGE OF CIRCUMSTANCES?
I will guarantee you one thing, if you show up at a child support modification hearing and your plan is to "tell the judge your story" then you are destined to fail. There is documentation and evidence that is critical to have in order to have a chance for a successful child support modification hearing.
What type of evidence will you need at a modification hearing? Hear are some examples:
- If you are claiming a substantial change in circumstances through job loss by no fault of your own, it is not enough to show up and say "I lost my job!" You will need some or all of the following
- Copies of job applications
- Rejection letters where you have been turned down for employment
- Proof of filing for unemployment and/or assistance from employment services
- Any other paperwork that would show you are actively seeking employment
- If you are claiming a substantial change in circumstances through a reduction in income being earned through your employment, you will need the following:
- Pay stubs or other documentation showing your pay rate / salary and total hours being worked
- Note that if your original child support order was calculated by using minimum wage as your base line income, then it is almost next to impossible to receive a child support reduction absent some very limited and exceptional circumstances
- If you are claiming a substantial change in circumstances through disability, a medical condition, or injury, you will need the following:
- Proof of application for employer sponsored disability benefits or Social Security Disability benefits
- If injured through military service, proof of application for VA benefits / pension.
- If claiming permanent disability, a statement from your doctor declaring that you are unable to work
THE 20% THRESHOLD - ONE LAST HURDLE TO CLEAR
In addition to being able to support a substantial change in circumstances through facts and supporting evidence, there is one last obstacle to clear before getting a court approved reduction in child support. South Carolina Department of Social Services Guidelines state once your new "numbers" are plugged into the DSS Child Support Guidelines, the reduced support amount must be an amount that is at least 20% less than the original child support order. This is not binding upon Family Court judges in South Carolina but a majority of judges have adopted this "standard" as a measure of what a substantial change should entail. What does that mean exactly? Here is an example:
Person X is obligated to pay $100 a month in child support. A few years later, Person X has a reduction in full time income and files with Family Court for a child support modification to lower payments. The courts finds that the loss of income is a "substantial change in circumstances" and warrants a new calculation of child support using Person X's new income in the Child Support Guidelines. After doing the new calculation, it is determined that Person X, based on new income, should be paying $85 a month in child support (15% reduction). Person X will not receive a modification of child support since the new payment is not more than a 20% reduction of the old $100 payment.
Same scenario, except after doing new calculation with Child Support Guidelines, it is determined that Person X should be paying $75 per month in child support (25% reduction). This change will be considered "substantial" since it is a reduction of more than 20% of the original support order and the court will reduce the child support.
Again, it is important to note that this guideline is not binding on the Family Court and specific facts may still warrant a reduction, but this is a pretty good rule of thumb to use in trying to predict what the court will do.
WHAT IF I HAVE MORE KIDS LATER?
This will be short and sweet. A Family Court judge will not consider any children you have had subsequent to the supported child with another sexual partner as grounds to warrant substantial change in circumstances.
THE MCMILLIAN LAW FIRM CAN HELP WITH CHILD SUPPORT MODIFICATION IN CHARLESTON, SC AND SUMMERVILLE, SC
Again, this is a very sensitive area of Family Law considering the implications and the stigma that may come with the title of "deadbeat parent." However, with the ever shifting landscape of personal finances and the impacts modern technology is having on the modern job market, it is very likely that many folks, including individuals making child support payments, will experience job loss or at the least, income fluctuations that will at some point jeopardize the ability to make support payments.
The absolute worst thing to do is do nothing. I implore anyone reading this that if you fall behind on support payments for any of the legitimate reasons stated above, please contact my law firm and schedule a consultation so a plan can be formed. The consequences of failing to plan and have a knowledgeable attorney by your side not only results in financial loss but potentially the loss of your personal freedom. Are you behind in payments and living in Charleston, Mt. Pleasant, Goose Creek, Summerville, Walterboro, Beaufort, St. George, Moncks Corner, Ridgeville . . . call The McMillian Law Firm now before it is too late and let me help!!