by Michael F. Callahan

Child support can be modified in Virginia post-judgment if there has been a material change in circumstance since entry of the order setting child support.  Section 20-108 of the Code of Virginia provides that the court may modify child support or custody as the changed circumstances of the parents and the benefit of the children may require.

The Court can act upon the petition of a parent, a probation officer or the Department of Social Services, setting forth the reasons for the relief sought.  The court can also act on its own initiative but this is something we have never seen.  Support can be retroactively modified only from the date that notice of the pending petition requesting modification has been given to the other party.

by Michael F. Callahan

The Office of Child Support Enforcement (OCSE), telephone 800-332-6347, provides various services to child support claimants.  It’s free after a nominal registration fee and can be effective in straightforward cases, especially if the child support payor is earning wages or salary from a Maryland based employer.   If your case is more complicated and time-consuming, well, OCSE has a big caseload and it may be a while before they get to it.

 

 

by Michael F. Callahan

The parties to a marital settlement agreement can preclude later changes by the court  for most provisions.  For example, they can agree on non-modifiable alimony, and then no court can modify it at any time for any reason in the future.

However, the same cannot be said for parties child support.  No matter what the parties say in their agreement, child support is always modifiable by the court.

If your spouse agrees to no child support in return for transfer of the house, and you transfer the house, can child support later be claimed?  Yes, child support is not the parent’s claim to waive.  It belongs to the children.   Similarly, an agreement that a certain child related-expense will not be covered, like orthodontic services, is not enforceable.

by Michael F. Callahan

You need solid information upon which to base a claim for modification of child support.  So when we represent payees we generally include a requirement to exchange tax returns or annual income documents like W-2’s and 1099’s annually or bi-annually.

If you are being paid child support, and don’t know whether the payer’s income has increased, it’s sometimes risky to proceed on mere suspicion rather than solid information.

And if  your income has decreased that may not help because the child support payee’s income does not change support amount much at most income levels under the guidelines adopted in 2010 by Maryland.

If, on the other hand, you are paying child support, and the payee’s income increases, and therefore you think the payee does not “need” all of the originally ordered support, you may not be successful in reducing child support under the revised guidelines.

by Michael F. Callahan

You can modify child support after divorce in Maryland if there has been a material change in circumstance since entry of the Order setting child support.  The applicable MD statute is Section 12-104 of the Family Law Article which provides

Modification of child support

(a) The court may modify a child support award subsequent to the filing of a motion for modification and upon a showing of a material change of circumstance.

Modification not retroactive

(b) The court may not retroactively modify a child support award prior to the date of the filing of the motion for modification.

Material means 1) relevant to child support and 2) of sufficient magnitude to justify a change.  There is no bright-line cut-off stating any required minimum change in support.   Obviously, the process requires time, effort and money, so minor increases or decreases may not be worth pursuing.

In the Mumma case, the wife called the court’s attention to the depreciation deduction that the Husband was taking for his business.  She pointed out that depreciation is a non-cash flow event and so the money is available to the Husband.

The argument on the other side is that equipment really does wear out and needs to be replaced eventually.  When it does, it will take cash flow to purchase new equipment.

Taking a look at the Maryland Child Support Guidelines in Section 12-201 of the Family Law Article, we see that income from self employment means gross receipts minus ordinary and necessary expenses.

However, the statute goes on to say that ordinary and necessary expenses do not include accelerated depreciation, investment tax credits, or any other expenses the court determines in not appropriate to subtract.

So what about straight line depreciation?  Does the fact that the law expressly disqualifies accelerated depreciation but not straight line depreciation mean you get to deduct it from income?  Or does the catch-all provision at the end allow the court to decide?  In the cases I have tried, the trial judges have included straight line depreciation as income.

Albert  Mumma married Jean in 1952 and they had three children together.   Albert supported the family as an architect.  He had an office in Georgetown.  In 1968 the parties had a violent altercation and they decided to divorce.

The judge awarded $200 a month in alimony and $500 a month in child support to Jean, plus attorney fees and costs.  Albert appealed complaining that he was ordered to pay support of $8,400 a year, while his income was only $9,422 in 1968 and $12,726  in 1969.   Jean countered that, among other things, he received gifts from his parents.

The DC Court of Appeals reversed the trial court, holding that “gifts do not constitute income” and suggested that Albert’s income tax returns would be an appropriate guide to his actual income in the absence of affirmative evidence otherwise.

Mumma v. Mumma, 280 A.2d 73 (1971)

T.K., who lives in a Minneapolis suburb, met Jhona Vandemore on a dating website in 2007.  Shortly afterwards they arranged to meet in person

Two or three months after Vandemore told T.K. she was pregnant with his child. He asked for a paternity test and she said that would cause her to file for child support in court.  T.K. acquiesced and agreed to pay her $1,000 a month.  She sent him a birth certificate and pictures of the child.

Over several years, T.K. paid more than $100,000.  T.K. married and his new wife became suspicious.  She hired a private investigator who took his findings to the police.

It turns out there was no child, the birth certificate was faked, and the pictures were of her cousin’s daughter.

Vandemore pled guilty this week to federal mail fraud and awaits sentencing.

Marye has written an interesting view of child support from her perspective as a mother of three at First Wives World.

On Tuesday, the District of Columbia will elect an Attorney General.  Judy Berman and Marc Efron report in the Washington Post that the largest division of the office of Attorney General is the Division of Child Support.

It serves more than 50,000 children (more than children enrolled in D.C. Public Schools).

It has a staff of more than 200  people charged with locating and serving non-custodial parents; processing and filing paternity cases, child support and medical support orders with the court; reviewing and revising orders, initiating and monitoring collections; and initiating enforcement actions for non-payment.

Even so, the Division of Child Support has challenges. Child support is not being collected for over half the children in the system.

The non-custodial parents, who are nearly always fathers, are overwhelmingly poor, with limited education and many have criminal histories, which prevent them from obtaining jobs.