Here's How . . .
To Modify Child Support
By: Attorney Jeffrey W. Jensen
Without a doubt the most common post-judgment motion filed in a divorce case is a motion to modify child support. Frequently, the motion is needed due to a financial disaster of some sort that has happened to the person paying the support. This, of course, may make it difficult for the person to hire a lawyer. Thankfully, the court process for modifying support is relatively simple and, therefore, if necessary, the person paying support should be able to file a motion to modify support without the assistance of a lawyer. For many reasons, it is not recommended that you attempt to handle any court proceeding without the assistance of counsel but some people have little choice. This article will focus on a motion filed by the payer of support to lower the child support order. The process, though, is the same if you are the person receiving support and you believe that the amount of support should be raised.
When should I file a motion to modify support?
Under Chapter 767 of the Wisconsin Statutes an order for child support is subject to modification whenever there has been a "substantial change in financial circumstances." The statute presumes that there has been a material change in financial circumstances whenever more than thirty-three months have passed since that last order setting support. Plainly, the phrase "substantial change in financial circumstances" is open for interpretation. There really is no way to narrow the definition except to emphasize that there must have been some change in the earnings of the payer that makes a difference in the child support calculation. For example, if the payer had been averaging twenty hours of overtime wages per month at the time the order was set and, now, he receives no overtime this would most likely qualify as a material change in circumstances.
DO NOT make an allegation such as this, "I want support lowered because I don't make as much as I used to."
Any person seeking a modification should always bear in mind, though, that the family court is a "court of equity". This means that, within very broad provisions of the law, the court is required to do whatever is "fair." Therefore, if the reason that the payer no longer receives overtime is because he declined numerous offers to work overtime the court may not be inclined to modify support. Another frequently-cited material change in circumstances is the loss employment. Again, if the court learns that the reason the payer was fired was for repeated tardiness and insubordination the court will have little sympathy and may make a finding that the payer is shirking his responsibility to pay support.
What papers do I need and where do I file?
In deciding what papers you need the first question is whether the person receiving support objects to the modification. Have you asked the other parent whether he or she agrees that there has been a legitimate substantial change in financial circumstances? If so, then all you need is a stipulation and order for modification of child support. This is nothing more than a formal written agreement between the parties that the support should be modified. After the parties have signed the document is submitted to the court. Once the judge signs the document it becomes a binding court order.
On the other hand, if there is no agreement, then a motion is required. There are two parts to the motion. First there is the notice of hearing. Until you actually file the motion with the court you must leave this part of the motion blank. Then there is the motion itself. Here you should describe in as much detail as is available the material change in financial circumstances that has occurred. Be detailed and be clear in this section because unless the court and the opposing party can understand what you are alleging you have little chance of succeeding. Your allegations should read something like this, "John Doe shows to the court that on January 2, 2007 when the last support order was set he was earning $50,000 per year working as an electrician. On March 1, 2008, though, John Doe was injured in a work-related incident and he is now unable to work as an electrician. John Doe currently works as a pizza deliveryman and earns $18,000 per year." DO NOT make an allegation such as this, "I want support lowered because I don't make as much as I used to."
Once you have completed the paperwork then next step is to make a number of copies and take them to the courthouse for filing. There will be a $30 modification fee that must pay first and then the clerk will give you a hearing date. You must serve a copy of the motion on the other party at least five days before the hearing. Make sure you obtain a copy of an affidavit of service and bring it with you to the hearing.
What evidence to I need at the motion hearing?
When you go to court for the hearing you will need, at the bare minimum, a sworn financial disclosure form. Ideally, though, you should have the most recent eight weeks of check stubs showing your income. Also, if the material change in circumstances is due to an injury that prevents you from working you should bring documentation from your doctor. If, through no fault of your own, you have lost your job you should bring with you documentation establishing your good-faith effort to find a new job.
How long does this take?
How long the process will take depends entirely on the county where the motion is filed. In Milwaukee County it is not unusual for the hearing on a motion to modify support to be six to twelve weeks from the time that it is filed. If the modification is granted, though, the court will make it retroactive to the day the motion was filed and any arrearage that has accrued since that time will be adjusted.
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Schiro & Zarzynski
Personal Injury Attorneys
Milwaukee, WI 53203
414.224.0825
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