Georgia law provides for certain circumstances under which a party may petition the court to modify his/her child support obligation. The most common basis for a child support modification is a change in the financial circumstances of the parties and/or the needs of the children.
However, a party may also request a child support modification based on a change in the custodial arrangement, a child reaching the age of majority or in circumstances where a party is exercising more or less visitation than what is outlined in the Parenting Plan. A child support modification may be modified upwards or downwards depending on the situation of the parties and reason(s) for the requested modification.
It is important to act as soon as possible when petitioning the court for a modification of child support in Georgia. Under most scenarios, child support is not retroactively modified. This means that the party paying child support must continue to pay the child support amount in the current court order until a new order has been entered. If a party has involuntarily lost his/her job, then the new child support amount may be retroactively applied to the date that the other party is served with the petition.
The court has the discretion to phase in the new child support amount over the course of up to one year if the child support modification is going to change significantly. However, the longer that the current court order is in place without a petition being filed, the longer the paying party will be obligated to pay the current amount.
Child support is not automatically changed based on a change of circumstances. For example, a party is paying child support for three children. Unless the child support order specifically provides for a change in child support as older children reach the age of 18, the party paying child support will continue to pay child support for all three children unless and until the child support is modified.
Accordingly, it is important to begin the modification process at the earliest time to avoid paying the incorrect amount of child support as there are no refunds for overpayment of child support. In this example, if the paying party waits until the oldest child ages out to file the modification of child support, he/she will continue to pay the child support amount for three children until the new child support order has been issued, which could be months later.
Even if the parties reach an agreement between themselves, the order still must be formally modified through the court. The child support order is the only amount of child support that is enforceable through the court. As such, any agreement between the parties pertaining to child support that is not reflected in a formal court order will not be acknowledged by the court. Regardless of the reason, modifying child support must be done through a formal court proceeding. Otherwise, the paying party runs the risk of being held in contempt for not paying child support in accordance with the court order.
If you are contemplating filing for a modification of child support in Georgia, the first step is to gather your documents and other information. This includes, but is not limited to, the current child support order, proof of income, proof of payment of expenses for the children such as health insurance premiums and work-related childcare, additional expenses for the children such as private school tuition and other extraordinary expenses. If you have any proof or information related to the other party’s income, that would also be helpful.
The second step would be to speak to and hire a Georgia divorce attorney. A Georgia divorce lawyer will be able to evaluate your position, discuss your options for moving forward with the modification and navigate the litigation process. The law can be complex. It is important to have an attorney who can interpret the law and guide you accordingly. You want to make sure that your child support is calculated correctly and that all factors are taken into consideration in determining child support.
After hiring your attorney, the third step would be to draft the petition to formally begin the process. Once the attorney drafts and files the petition, arrangements will be made to have the other party formally served with the petition. Service of the petition on the other party officially begins the modification process. From there, the attorney will guide you through discovery, mediation and/or trial, if necessary.