I help people protect and enforce their rights in divorce, paternity, and enforcement proceedings. With the divorce rate climbing for several decades now,¹ chances are you know at least a few people who either pay or receive child support. With child support (or alimony), the following scenario is quite common: after a divorce decree or paternity order is entered, time passes and a significant life event occurs that changes one parent’s income. Perhaps Mom or Dad loses a job or earns less than at the time of the order, goes back to school, is seriously injured, joins the military, or is incarcerated. Mom and Dad might attempt to work out a different child support arrangement, perhaps even putting an agreement in writing, allowing the paying parent to pay less child support. Relying on such an agreement, rather than seeking a modification from the court, could be costly.
Notwithstanding a reduction in income or a private agreement to reduce child support, the child support obligation remains constant in the Court’s static, unflinching order. Thus, only by asking the Court can child support be officially modified. And any subsequent modification will not date back to the change in circumstances. Federal law provides that every child support payment becomes a judgment by operation of law as soon as it comes due and may not be retroactively modified.² Likewise, Utah courts have no authority to modify the child support any sooner than the paying parent files the request with the Court.³
Here’s a hypothetical scenario in which Dad has been ordered to pay child support: Suppose Dad’s pay is cut in half in March 2011. Mom and Dad agree in writing that Dad will pay 50% of the child support until he gets a better job. In December 2011, Mom loses her job and asks Dad to pay the full amount of child support owing in arrears back to March. What now? Mom can simply ask the Court to enforce the full amount of child support since March 2011, and the Court will do so. Even if Dad brings the signed agreement to Court in January 2012, the Court will still order Dad to pay the full child support amount from March to December, though the Court may reduce child support starting in 2012 when Dad went to Court.
A private agreement to modify child support has no legal effect and may compromise legal rights. Because this rule concerning child support is so unforgiving, a parent paying or receiving child support should promptly consult an experienced family law attorney when a change in circumstances occurs to identify the best course of action.
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¹ “The Rising Rate of Divorce,” at http://www.divorce.com/article/rising-rate-divorce.
² 42 U.S.C. § 666(a)(9) (1994, Supp. IV 1998, & Supp. 1999)
³ U.C.A. § 78B-12-112(4); Karren v. State Department of Social Services, 716 P.2d 810, 813 (Utah 1986) (only prospective modification of a support obligation is proper).
