We throw about the term “substantial change in circumstances” like everyone in the world would know what we are talking about. So, what does it mean and when does it apply? When you are divorced, and if you plan to modify financial support orders, whether it be child support, family support or maintenance, you are required post judgment to prove that there has been a significant and substantial change in the financial circumstances of the parties to warrant the modification.
If you are the payer and requesting that your payments be lowered, you bear the burden of proof and you must be able to show that there has been a substantial change. If you are the payee and requesting that your payments be increased, then you bear the burden of proof and have to prove that there has been a substantial change.
A change in circumstances compares the parties’ current financial circumstances to what existed at the time the last support orders were set. For child support, after 33 months, there is a statutory presumption that there has been a substantial change. The presumption can be overcome by evidence presented but after 33 months, the court assumes there is a change and a need for a modification of the child support order.
What constitutes a “substantial change?” While you can’t find the answer in any law book, case law, or statutory provision, generally, there must be at least a $10,000 difference between the current financial information as it exists today to what it was when the orders were last set. If you are a payer and want your payments reduced, that would mean you would need to show the court, through no fault of your own, you lost your job, your hours were cut, no overtime is available, and in some way, your income today is $10,000 or more less than it was at the time the last support orders were set. If you are the payee, and you are seeking more money in support, you would have to show that the payer’s income has increased by $10,000 or more since the last court orders were set. No one can promise or guarantee that even at $10,000 the court is going to be convinced that a substantial change in circumstances has occurred, but anything in the more modest range of a $3,000 change, $6,000 change or $9,000, while one can try, it is going to be difficult in my opinion to convince the court the change is substantial. It’s not just “a change” or “a marginal change.” The case law is clear that the change must be “significant and substantial.”
Both parties will be required to bring with them to court copies of their previous 2 years of income tax returns, a completed financial disclosure statement under oath, and copies of current check stubs. One would also expect that you would bring the relevant financial information from the last time support was set and this would include copies of the tax returns in the year the orders were set, the preceding year prior orders being set, the financial disclosure statements used at the time of the last court hearing, and if available, check stubs that both parties used at the time of the last court hearing. In that way, the court will have accurate information on what the parties are both making now and what they were making when the orders were last set.
There can be other reasons why a “substantial change” has occurred; a placement change of minor children from one parent to the other would be considered a substantial and significant change, even if no change in the financial circumstances of the parties.
It is always a good idea to consult with an experienced family lawyer before proceeding with a post judgment modification to adjust support one way or the other. While no attorney can guarantee or promise the outcome, finding out in advance whether you have a case for modification is better than filing a motion, spending time and money in court and finding out very quickly, while there may have been some change since the last time the support orders were set, it’s just not enough of a change to have the support orders adjusted.
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