Child Support - Modification of Child Support

  • By bill.myersii
  • 14 Jun, 2017

Once a payor's child support obligation has been set by court order or decree, it will remain at the ordered amount for the ordered length of time unless and until one of the parties files a motion to modify it.

Modification of child support is permitted under Arkansas law when the gross income of the payor goes up or goes down by more than 20% or more than $100 per month. A change in income in either of these amounts is called a "material change in circumstances." Additionally, modification is permissible if the payor has a change in his or her ability to provide health insurance for the child or children. Modification can be possible under several other circumstances, too, if there is an enforcement case open with the Office of Child Support Enforcement ("OCSE"). Click here to visit my page about enforcement of child support orders, including those enforced by OCSE.

Ordinarily, the custodial parent is entitled to notice of a change of income in the payor. This notice is usually indirect, where the payor is simply obligated to provide his or her last year's tax returns within some period of time after they are filed, regardless of whether the reflect a material change in circumstances.

As I indicated above, the payor's child support obligation remains at the ordered amount until the court enters a new order changing it. Thus, if the payor loses his or her job and has a significant reduction in income, their child support obligation remains the same until the court orders it reduced. This is true even if the custodial parent agrees to let the payor pay less. (If you're a payor and the custodial parent has made such an agreement, make sure to get it in writing. Then follow be sure to file your motion as outlined below. Alternatively, if the custodial parent is willing to make this agreement, it's even better to just go ahead and get them to sign an agreed order to that effect and sen that to the court when you file your motion.)

Once you file a motion for modification, it may take several months before the court can set a hearing date. It may take that long to get the order modifying the child support obligation. This is particularly unhelpful if the payor has experiences a significant loss in income or if the custodial parent experiences a significant increase in child-related expenses. Sometimes, the motion for modification can be drafted in such as way as to ask the court for a very brief, emergency hearing, which may make it possible to get a hearing date more quickly. Also, even if it takes several months to get the court order modifying the child support obligation, the court will usually make the modification retroactive back to the date the motion was filed.

As always, if you have any questions about child support modification, please don't hesitate to give me a call. I'm happy to visit with you about it. I can be reached on my cell phone at 501-519-0186, or at the office at501-222-7378, or by email at harrison@mannkemp.com.

Thanks for reading!

Mann & Kemp PLLC Blog

By bill.myersii 14 Jun, 2017

In Arkansas, as in most places, marriage is a contract that the parties can't agree to break themselves. Once you and your spouse agree to get married, you also agree that a circuit judge will have to be consulted in order to get out of it. In this way, marriage is unlike other contracts. For historical and practical reasons, we have decided that marriage is a cultural institution that needs protection even from the married couple themselves. Marriage, after all, can be quite challenging, and fewer marriages would endure if dissolving them were as easy as switching phone companies. Thus, if you want to dissolve your marriage agreement, you have to go to court - no ifs, ands or buts about it. This is especially true if your marriage is a covenant marriage, which you can read about here.

Divorce actions are begun like other civil lawsuits - by filing a complaint and serving it with a summons on the defendant. It is important to remember that the divorce action is a lawsuit, just like any other. The person filing the lawsuit has to establish certain facts, or the divorce cannot be granted. In addition to proving residence in Arkansas for an adequate period of time, the filing party must show the court that they have grounds for getting divorced. In other words, they have to show the court that there is a good reason to terminate their marriage contract. Click here to learn about the different grounds for divorce in Arkansas. The most common grounds for divorce is called "general indignities," which means exactly what you think. In my experience, courts don't dig in too deep to the grounds question. Don't get me wrong - you have to prove your case. But if you can testify that the state of the marital relationship is bad enough that you can no longer endure it, the court will usually grant you the divorce.

In Arkansas, we don't have "no fault" divorce, meaning that a plaintiff must have grounds for divorce. However, if you can't prove general indignities or some other basis for divorce, then you can simply file a suit for separate maintenance which doesn't require that grounds be proven. This will allow you to establish a separate residence for yourself which, if it is maintained for at least 18 months, will entitle you to a divorce on the grounds of eighteen months continuous separation.

Getting the divorce is the easy part. Figuring out what to do about minor children, child support, property division and alimony is the hard part.

Click on the links to learn about each of those issues.

As always, if you have any questions, please don't hesitate to call on me. I can be reached at the office at 501-222-7378, or on my cell at 501-519-0186, or by email at harrison@mannkemp.com.

Thanks again for reading!

By bill.myersii 14 Jun, 2017

Discovery is a catch-all term that describes the rights of the parties to a lawsuit to learn about the information their opponent has. The discovery phase of a lawsuit usually begins as soon as the lawsuit is filed, and lasts until the parties feel it is completed, or until a court-ordered cutoff date. Typical discovery consists of written discovery, like interrogatories and requests for production of documents, as well as non-written discovery, like depositions, physical examinations of places and items, and psychological examinations of people.

As a general rule, a party is entitled to discover any information possessed by their opponent that is relevant to the lawsuit and that is not exempted from disclosure. In family law cases, we are permitted to discover information that is not usually relevant to other kinds of lawsuits. We usually have ready access to both parties' financial information, medical information, and other personal information.

Discovery is indispensable. Frequently, a party who will end up paying child support or alimony will not want to pay as much as the law requires. In those cases, discovery is used to get the information that is needed to show the court how much child support or alimony should be paid.

When custody is an issue, your opponent will not want the court to know about the skeletons in their closet. They usually do not volunteer the bad information that is relevant to a custody determination and that is important for a court's consideration. Discovery is how we get that bad information for the court.

Of course, it's important to remember that discovery is had by both sides to the lawsuit. What's good for the goose is good for the gander.

In short, in my opinion, cases can be won or lost based on the information that is obtained through the discovery process. It can be time-consuming and difficult, but it a gift to your case and should not be undervalued.

If you have any questions about discovery in Arkansas family law cases, I'm happy to visit with you. I can be reached on my cell phone at 501-519-0186, or at the office at501-222-7378, or by email at harrison@mannkemp.com.

As always, thanks for reading!

By bill.myersii 14 Jun, 2017

Once a payor's child support obligation has been set by court order or decree, it will remain at the ordered amount for the ordered length of time unless and until one of the parties files a motion to modify it.

Modification of child support is permitted under Arkansas law when the gross income of the payor goes up or goes down by more than 20% or more than $100 per month. A change in income in either of these amounts is called a "material change in circumstances." Additionally, modification is permissible if the payor has a change in his or her ability to provide health insurance for the child or children. Modification can be possible under several other circumstances, too, if there is an enforcement case open with the Office of Child Support Enforcement ("OCSE"). Click here to visit my page about enforcement of child support orders, including those enforced by OCSE.

Ordinarily, the custodial parent is entitled to notice of a change of income in the payor. This notice is usually indirect, where the payor is simply obligated to provide his or her last year's tax returns within some period of time after they are filed, regardless of whether the reflect a material change in circumstances.

As I indicated above, the payor's child support obligation remains at the ordered amount until the court enters a new order changing it. Thus, if the payor loses his or her job and has a significant reduction in income, their child support obligation remains the same until the court orders it reduced. This is true even if the custodial parent agrees to let the payor pay less. (If you're a payor and the custodial parent has made such an agreement, make sure to get it in writing. Then follow be sure to file your motion as outlined below. Alternatively, if the custodial parent is willing to make this agreement, it's even better to just go ahead and get them to sign an agreed order to that effect and sen that to the court when you file your motion.)

Once you file a motion for modification, it may take several months before the court can set a hearing date. It may take that long to get the order modifying the child support obligation. This is particularly unhelpful if the payor has experiences a significant loss in income or if the custodial parent experiences a significant increase in child-related expenses. Sometimes, the motion for modification can be drafted in such as way as to ask the court for a very brief, emergency hearing, which may make it possible to get a hearing date more quickly. Also, even if it takes several months to get the court order modifying the child support obligation, the court will usually make the modification retroactive back to the date the motion was filed.

As always, if you have any questions about child support modification, please don't hesitate to give me a call. I'm happy to visit with you about it. I can be reached on my cell phone at 501-519-0186, or at the office at501-222-7378, or by email at harrison@mannkemp.com.

Thanks for reading!

By bill.myersii 14 Jun, 2017

The first step in the child support calculation process is to determine the payor's gross income for child support purposes ("GICSP"). When the payor is simply an employee, GICSP is fairly easy to calculate and there's not much room for shenanigans. However, when the payor is a sole proprietor or business owner, GICSP can be quite tricky to calculate and the payor can use several strategies to reduce his GICSP (and thus his child support obligation) without losing the benefit of the income.

Consider the following typical example:

John Doe is a sales consultant for a large local electrical supplier. He is treated as an independent contractor and paid a flat rate of $8000 per month. It would be tempting to use that gross number of $8000 to begin calculating John's net income for child support purposes. But John does business as John Doe Sales, LLC, and the $8000 monthly check gets deposited into the LLC's bank account. John doesn't receive all $8000 as income from the LLC, so his GICSP does not equal $8000. Instead, John elects to pay himself a salary of $2000 monthly. Additionally, John has the LLC pay his car note, cell phone and car insurance which total $1000 per month. The LLC also has other pure business expenses of $2000 per month.

At the end of each month, John distributes $2500 to himself and leaves the remaining $500 as savings. John would prefer to argue that his GICSP is equal to his salary of $2000 and his LLC distribution of $2500, or $4500 in gross.

Jane Doe would prefer to argue that John's GICSP is $6000 per month, based on his $2000 salary, his $2500 distribution, the $1000 in John's personal expenses paid by the LLC, and the $500 in retained earnings that John left in the LLC.

Most attorneys and courts would agree that John's pure business expenses are not going to be included in John's GICSP. However, it is important to note that depreciation will only be allowed to the extent it represents an actual decrease in value of a particular asset.

In a dispute like the one between John Doe and Jane Doe, a court will frequently split the difference between the two argued amounts, fulfilling the court's unofficial duty of making sure nobody leaves the courthouse happy.

As always, if I can help answer any questions you might have about child support in general, or self-employed payors in particular, please call on me anytime. I can be reached on my cell phone at 501-519-0186, or at the office at501-222-7378, or by email at harrison@mannkemp.com.

Thanks again for reading!

By bill.myersii 14 Jun, 2017

Child support in Arkansas is calculated based on the payor's net income for child support purposes. Click  here  to see my page on child support calculations in general. Once we determine the payor's net income for child support purposes, that number is plugged into the current Arkansas child support chart that is published by the Arkansas Supreme Court. The chart gives us the presumptive child support obligation of the payor based on the number of children and the pay frequency of the payor (biweekly, semimonthly or monthly). In 99 out of 100 cases, the court will order the payor parent to pay the presumptive child support obligation that comes out of the child support chart. However, in some cases, the court will allow a deviation from the presumptive amount - either upward or downward depending on the facts of the case.

Custodial parents ask for upward deviations. They are asking the court to order the payor to pay more than the presumptive chart amount of child support. Most of time, this is an uphill battle. The circumstances under which a court would order an upward deviation are usually when a child has significant expenses associated with special schooling, learning disabilities, mandatory travel, or special medical requirements.

Payor parents ask for downward deviations. They are asking the court to allow them to pay less than the presumptive chart amount of child support. Most of the time, this too is an uphill battle. The circumstances under which a court would order a downward deviation are usually when the payor can show that the chart amount far exceeds the reasonable costs allocable to the child (remember Corliss Williamson's case!), or where the chart amount creates an unreasonable burden on the payor or a third party.

Administrative Order No. 10 requires the court to note the reasons for deviation any time the court makes a deviation.

If you have any questions about child support deviations, I am happy to make myself available to visit. I can be reached on my cell phone at 501-519-0186, or at the office at501-222-7378, or by email at harrison@mannkemp.com.

As always, thanks for reading!

By bill.myersii 14 Jun, 2017

If you're looking at this page, chances are that you're either having to pay child support or you're having to make someone pay. In either case, the law is the same and most cases will be pretty easy to get resolved. Let's talk about the basics first.

Child support will be ordered in 99% of cases in which one parent has physical custody of the minor child. This is usually true whether the parents share joint "legal" custody or not. The idea is that the primary custodial parent has actual possession of the child more of the time and therefore has a greater financial burden than the noncustodial parent. Thus, the question of whether child support will be paid, and by whom, is really answered by reference to the custody of the child. For more information about child custody in general, you should click here.

Once we determine who will be paying child support, we then have to figure out how much will be paid. Child support calculation is pretty standard. It is mostly determined by a chart that is published by the Arkansas Supreme Court. You may have heard of this - it's called Administrative Order No. 10; the child support chart. Click  here  to see Administrative Order No. 10.

Generally, we begin by determining the payor's gross income for child support purposes ("GICSP"). This gross income amount may be the same as gross income for tax purposes, but it may also be higher (or sometimes lower). Ordinarily, GICSP is just going to be wages, salaries and tips, but it can include income from any source (except SSI). A frequent issue that comes up when calculating GICSP relates to self-employed payor's who "live out of their business." In these cases, the payor is an independent contractor or owns a business and has their business pay many of the expenses they would ordinarily have to pay themselves - like cell phones, car payments, insurance payments, and even their mortgage. This allows them to show much less "income" to themselves and therefore their child support calculation will produce a lower child support amount. There are several ways to defend this maneuver or try to defeat it. Click  here  to visit my page focused on self-employed payor's. Also click  here  to learn about discovery in family law cases, which explains how we can get the information we need to calculate GICSP.

After we calculate the payor's GICSP, we determine the payor's state and federal income tax amounts, as well as certain payroll tax amounts, and add in any health insurance premiums that are attributable to the children. All of these amounts are subtracted from GICSP. Lastly, we subtract any child support payments that are being paid by the payor for a different child or children (like from a previous marriage). Once all of those subtractions have been completed, what we have is called net income for child support purposes ("NICSP").

Once we get to NICSP, we simply plug that number into the child support chart. Depending on the pay frequency (biweekly, semimonthly, monthly, etc) and the number of children, the chart will produce an amount of child support called the "presumptive child support obligation." This will be the payor's actual child support obligation 99% of the time. However, in some cases, the presumptive child support obligation can be increased or decreased based on the unique circumstances of the case. These increases or decreases are called upward and downward deviations from the presumptive child support obligation, and deviations are examined more closely on  this  page.

The child support obligations are always set by court order or decree, the parties can usually negotiate on the child support obligation and prepare an "agreed order" which the court will usually sign without any fuss or need for a hearing. (Some judges won't sign an agreed order if it contains a significant downward deviation that is unjustified.)

Once the child support has been ordered, it will usually be paid either directly to the custodial parent, or paid through the court registry, or paid through the Arkansas Child Support Clearinghouse.

If child support is ordered and not paid, then the custodial parent can usually get a separate judgment against the payor for the amount that went unpaid. Judgments can be handy tools to have, and judgments for child support are superjudgments - they cannot be discharged in bankruptcy and they take priority over most other claims. Click on this page to learn more about child support enforcement and collections.

Sometimes a payor's child support obligation needs to be changed because he or she had an increase or decrease in GICSP of more than $100 per month (and a few other reasons). Either the payor or the custodial parent can file a motion seeking to modify the payor's child support obligation and, again, the parties can prepare an agreed order to send to the judge instead of having a hearing. Click  here  to learn about modification of child support.

Child support can be a sensitive topic for both parties. While payor's are usually happy to take care of their children, they sometimes hate the idea of paying large sums of money every month to their ex-spouse or ex-partner. Likewise, custodial parents may resent a late-paying or non-paying payor. In the end, sometimes court action is the only option left.

If you have any questions about child support in Arkansas, I am happy to make myself available to visit. I can be reached on my cell phone at 501-519-0186, or at the office at501-222-7378, or by email at harrison@mannkemp.com.

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