- Child support, once ordered by the Court, can only be officially changed by court (even if the obligator becomes incarcerated). The only exception is when children no longer qualify for child support due to age or emancipation (duration).
- A modification is not automatic. It needs to be filed with the appropriate court of jurisdiction. Incarceration, incapacity or other circumstances in which a party is not available (like prisoner-of-war) is not a viable defense.
- No state gives a right to a modification.
- Most states allow a modification if child support changes by a certain percentage/dollar amount. Range is between 10-25% with equal distribution between 10-20%. See variances for modification by state.
- Some states have a ‘waiting period’ before child support can be changed. In Georgia, child support in private cases can only be modified every 2 years from the date of the previous modification court order unless one of these conditions are met: 1.Noncustodial parent failed to exercise court ordered visitation 2.Noncustodial parent exercised more visitation than was previously allowed in the court order. 3.Involuntary loss of income
- The rules regarding Title IV-D cases are different and defined in O.C.G.A. § 19-11-12.
- In Georgia, a court may order temporary modification pending final trial but these are rare.
- In Georgia, courts may award attorney’s fees, costs, and expenses of litigation to the prevailing party as the interests of justice may require (O.C.G.A. § 19-6-15(k)(5)).
- The only federal regulation regarding modifications is that it cannot be ordered retroactively prior to the date of the petition/motion to modify it (See Bradley Amendment of 1986). This was intended to prevent judges from retroactively modifying child support
- Based on the number of cases filed in Gwinnett County Superior Court from 1990-2017 (See list), modifications are much less common than divorces.
- While the majority of divorce are initially filed by mothers, the majority of modifications are filed by fathers.
- While modifications are less complicated than divorces, they often cost thousands of dollars in attorney fees and take over one year to get to trial. The costs of litigation often outweigh the benefits. For example, my 2016 modification cost $10,875. My child support was lowered by $270 per month. It took 40 months to break-even.
- Because Georgia starts the clock on the two year window on the date of the Court Order modifying support, it often means that the waiting period is way more than two years. I filed my modification on 1/21/2016. The hearing was 1/26/2017. The Court order was signed 7/16/2017. If the Court hadn’t signed the order with 1/23/2017, the two year waiting period would have started 7/16/2017 (18 months after I initially filed)
- There is still a misperception by many people that child support stops when the obligator becomes incarcerated.
- In Georgia, there is too much incentive for the responding party to stall or not be worried about delays. In my modification, my ex’s attorney was older and had health issues. A trial was delayed at least twice.
- Here is a great article.
- Georgia should start the waiting period for private cases when a modification is filed, not the date of the order.
- There should be a right to modification regardless of circumstances every four years.
- Bradley Amendment needs to be modified to allow retroactive modifications for significant events like incarceration.