by Bruce L. Dorner
You were divorced in 2005. Although things are going reasonably well between you and your Ex-spouse, money is tight. The child support you are receiving isn’t keeping up with expenses. Your Ex got a rather nice raise and a bonus from work. You asked for a little more help and got the common response, “hey, I have other expenses too!”
So, what do you do? Our State law provides an automatic entitlement to a judicial review of child support every three years. Neither party has to provide any reasons for the review, just that time has passed. If you’d care to read the law, it is RSA 458-C:7.
Now, just because you have this right doesn’t mean you should head blindly toward the courthouse. First, note that child support starts as a mathematical computation based on a State approved formula. You may wish to plug in your own numbers to see if the result produces an upward or downward change in child support. There’s no sense in rushing to the courthouse if you’re not going to get an increase (unless you’re the paying parent.) You can find the guideline calculator on the Internet at this link. Do not rely solely upon this calculation. There are a number of exceptions under State law to vary from the guidelines, but it is a good starting point.
After you fill out the on-line calculator, you may wish to share the results with your Ex. Often common sense will result in an agreement for a change to avoid the expense of a courtroom battle. However, I urge that you reduce the agreement to writing and file it with the court which granted your divorce. The court will likely require that you also file copies of updated financial affidavits, the child support guideline calculation worksheet and a Uniform Support Order before approving your figures. The clerks at the courthouse are very helpful in providing you with copies of the required forms, but remember, they can’t offer legal advice.
The three-year review is not the only reason to consider an adjustment in child support. State law provides that if there is a substantial and unforseen change in circumstances, either party may request a review hearing. So, if one parent has lost his or her job, it may be appropriate to ask the court for relief during the term of unemployment. It is important to note that if the out-of- work parent does not file with the court, there will be no relief granted and an arrearage can mount. Generally, a private agreement between the parties is not sufficient to avoid the wrath of the judge. After all, the judge issued the order and only the judge can order a change.
As an example, let’s assume Dad got laid off on February first. He has no income and only nominal savings. He didn’t tell Mom and he figured he would be back working in a week or two. On March 15th Dad is still unemployed, actively looking, and panicking as to where he will get money for food for himself, let alone to pay child support to Mom. Mom says, “I’m sorry you are out of work, but the kids have to eat and I need the money.” Dad stops or reduces his child support payments. Mom goes to court asking the judge to hold Dad in contempt for violating a court order. Dad is on the short end of the stick.
On the other hand, if Dad went down to the courthouse during the first week of February and filed for a temporary adjustment in child support, at least he would have taken an affirmative step to protect his own financial condition. Due to the workload at court, it’s not likely a hearing would be held for at least a month, but any order issued could be made effective as of the date Dad had the court papers officially delivered to Mom. Clearly, this is a far better situation than sitting back and waiting for the court to issue a finding of contempt against Dad for nonpayment. As always, it’s a good idea for each parent to consult with an attorney in these circumstances to sort out workable alternatives and achieve the best solution under difficult conditions.