Many parents with child support orders believe that because child support is calculated based on a percentage of income, the amount of child support owed by the noncustodial parent automatically changes as the parties’ incomes change.  This is not the case.

In order to modify a child support obligation, a party must make a motion asking the Court to change the child support amount.  To be entitled to a modification, the moving party must convince the Court that there has been a substantial change in circumstances.  By law, this means proving that one party has experienced increased or decreased gross income or has experienced increased or decreased needs since the time the prior order was entered.  The mere fact that the child support laws have changed does not constitute a basis for making a motion to modify child support.  There must be an underlying change to the parties’ circumstances. 

A word of caution – do not assume that the Court will automatically accept the lower income figure offered by the noncustodial parent.  Courts often approach motions to decrease child support with a certain amount of suspicion, almost as if they presume that the noncustodial parent has intentionally manipulated their income as to lower their child support obligation.  If the Court believes that the noncustodial parent is voluntarily underemployed or voluntarily unemployed, the Court has the ability to determine the parent’s income on the basis of “potential income.”  Thus, if the noncustodial parent quits his/her job and takes a job making half of their old income, the Court can deny a motion to decrease child support on the basis that the noncustodial parent is voluntarily underemployed.  If the Court believes that the party moving for a decrease in child support can or should be earning the income they earned at the time of the initial child support order, then the motion will likely denied.

If you are considering bringing a motion to decrease your child support, do not wait and assume that the Court will go back in time and make the modification retroactive to the date that your income changed.  Under the law, the Court can only make a decrease in child support effective as of the date that the motion for the decrease was served upon the opposing party.  Thus, if you lose your job or suffer a decrease in your income level, do not wait until you have extra money to bring a motion to decrease your child support obligation.  Hire an attorney as soon as possible!  Your child support continues to accrue at the same rate unless and until it is modified by a new Court order.

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Gadtke & Beyer, LLC
6600 France Avenue South Suite 680
Edina, MN 55435

Telephone: 952-345-8004
Fax: 952-920-2209

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