Bivek, Brubaker & Prescott - Marietta family law and divorce attorneys

Child Support Modifications: Frequently Asked Questions

Whether you are married and divorced, or whether you have a child born out of wedlock and are ordered to pay child support, some of the most common questions we get at Bivek Brubaker & Prescott revolve around child support. Our child support attorneys can help answer all of your questions and give you the best legal advice regarding your child support situation. Let’s start with some basic questions.

Can I change the amount of child support I am currently paying? If so, do I have to wait 2 years? How many times can I modify child support?

Child Support, once ordered, is always subject to modification. The statute governing child support modifications in Georgia is O.C.G.A.  19-6-15. Under subsection (k) of the statute you may not file a child support modification within 2 years of the final order of child support or on a final order from a previous petition to modify child support except as follows:

  1. A noncustodial parent has failed to exercise the court ordered visitation;
  2. A noncustodial parent has exercised a greater amount of visitation than was provided in the court order; or
  3. The motion to modify is based upon an involuntary loss of income as set forth in subsection (j) of this code section.
    1. Sub-section J states: (1) In the event a parent suffers an involuntary termination of employment, has an extended involuntary loss of average weekly hours, is involved in an organized strike, incurs a loss of health, or similar involuntary adversity resulting in a loss of income of 25 percent or more, then the portion of child support attributable to lost income shall not accrue from the date of the service of the petition for modification, provided that service is made on the other parent. It shall not be considered an involuntary termination of employment if the parent has left the employer without good cause in connection with the parent’s most recent work.

It is important to note that child support can be modified as many times as someone wants to, so long as the above criteria are met each time you are seeking a modification.

You can also seek a modification of child support before the 2 year period if there is a substantial change in the needs of the child (i.e. increased or decreased expenses for activities and care).

How long does it take to modify child support?

Sub-section (2) of the child support statute O.C.G.A. 19-6-15 states that “In the event a modification action is filed pursuant to this subsection, the court shall make every effort to expedite hearing such action.” Typically, a temporary hearing can be scheduled approximately 30-45 days from the day a petition to modify child support is filed. At the temporary hearing, attorneys can seek a temporary reduction in the child support amount while the parties argue over what the final number should be. Sometimes there may be complicated discovery issues or income issues that need more time than 30-45 days to properly prepare for a hearing, and so a good rule of thumb is to plan for 3 months for the entire process from beginning to end. The new amount of child support typically kicks in on the 1st month after the order, and does not apply retroactively to the date of filing the petition unless agreed to by the parties or ordered by the court.

Can the new child support be phased in over a period of time or does it take effect immediately?

For the most part, the new child support order takes effect immediately. However, there are some exceptions.

When there has been an “involuntary loss of income” as defined above, the child support statute says that the court may, at its discretion, phase in the new child support award over a period of up to one year with the phasing in being largely evenly distributed with at least an initial immediate adjustment of not less than 25 percent of the difference and at least one intermediate adjustment prior to the final adjustment at the end of the phase-in period.

The statute clarifies that if there is a difference of at least 15 percent but less than 30 percent between a new award and a Georgia child support order entered prior to January 1, 2007, the court may, at its discretion, phase in the new child support award over a period of up to one year with the phasing in being largely evenly distributed with at least an initial immediate adjustment of not less than 25% of the difference and at least one intermediate adjustment prior to the final adjustment at the end of the phase-in period.

Also, if there is a difference of 30% or more between a new award and a Georgia child support order entered prior to January 1, 2007, the court may, at its discretion, phase in the new child support award over a period of up to two years with the phasing largely evenly distributed with at least an initial immediate adjustment of not less than 25% of the difference and at least one intermediate adjustment prior to the final adjustment at the end of the phase-in period.

Phasing in child support is complicated, and an attorney should be hired when dealing with these types of issues.

Can I get attorney’s fees for a child support modification?

Yes, the Court can award attorney’s fees in child support modification cases based upon the discretion of the Court. The law says that in proceedings for the modification of a child support award pursuant to the provisions of the child support guidelines, the court may award attorney’s fees, costs, and expenses of litigation to the prevailing party as the interests of justice may require. Where a custodial parent prevails in an upward modification of child support based upon the noncustodial parent’s failure to be available and willing to exercise court ordered visitation, reasonable and necessary attorney’s fees and expenses of litigation shall be awarded to the custodial parent.

For a fixed $100 consultation fee, the attorneys at Bivek Brubaker & Prescott can give you an idea of how much child support you should be paying based on current circumstances, and give you advice about whether or not it’s worth pursuing a change in the child support order in Court. We approach everything from a cost benefit analysis to make sure our client’s come out ahead in child support modification cases. Call us today to get started!

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