When it comes to Arizona child support modifications, timing is everything. Child support is always modifiable in Arizona when circumstances change. These changed circumstances may include increases or decreases in the parents’ incomes, changes in the number of children for whom support is payable, and changes in the cost of medical insurance or child care. Child support may also be modifiable when parenting-time schedules change.
Arizona does not, however, permit retroactive child support modifications. A.R.S. Section 25-327.A. clearly establishes that child support modifications “are effective on the first day of the month following notice of the petition
Under the statute, the court has discretion to make a child support modification effective at a date later than the first day of the month after notice of the filing. A later effective date may be appropriate when the change of circumstances warranting a change in child support occurs sometime after the modification paperwork is served. For example, if a parent who has only alternating-weekend parenting time and who pays child support seeks increased parenting time and a reduction in child support based solely on the increase in parenting time he is seeking, the child support modification should only take effect if and when the increased parenting time is awarded.
The statute does NOT allow the court discretion, however, to make a support modification effective at a date “earlier than the date of filing the petition for modification . . . .” A.R.S. Sec. 25-327.A. This statutory restriction makes the dates of filing and service of a petition to modify child support absolutely critical. Parents are sometimes astonished when they learn they may not modify support retroactively, particularly when the basis for the child support modification is that one or more of the parties’ children reached age eighteen some time ago, graduated high school, and is no longer eligible for child support. Even the loss of a job or the onset of a physical disability will not justify a retroactive child support modification.
Consider these three examples:
Example 1 — Payor’s Loss of Job. Father owes Mother child support of $900 per month based on his salary of $80,000 per year. The child support is paid by wage assignment (garnishment). Father is laid off from his job, and the wage assignment stops because father has no wages from which the child support can be paid. Father assumes his child support obligation is suspended while he looks for work. Father diligently applies for jobs, and after a year, he finally lands a job earning $50,000 per year. Father then files to modify child support. Father qualifies for a reduction of child support to $600 per month effective the first day of the month after the modification petition is served on Mother. Father learns his child support obligation was NOT suspended when he lost his job. He continued to owe Mother $900 per month during the time he was out of work, and Father now owes mother over $10,000 in back child support. Had Father filed to modify support immediately when he lost his job, Father might have successfully reduced child support to only $200-$300 per month during the time he was out of work.
Example 2 — Emancipation of Older Children. Mother and Father have three children together, consisting of twin girls who are 18 years old and seniors in high school, and a son who is 14 and in eighth grade. Father pays child support to the Mother of $1,100 per month. The girls graduate high school in the month of May, creating a change in circumstances (emancipation of the twin girls) which would warrant a reduction in child support. Father is busy and neglects to file and serve his child support modification action for six months–until the month of November. When Father does get around to seeking a support modification, he discovers that his support obligation will be reduced from $1,100 per month (for three children) to $500 per month (for one child). He is disappointed to learn, however, that the modification will be effective December 1 (the first day of the month after service of the petition) rather than June 1 (the first day of the month after his daughters graduated high school). Father sadly realizes he has overpaid Mother $600 per month from June through November, or $3,600 total, and that he has no legal basis to seek reimbursement of this overpayment from Mother.
Example 3 — Payor’s Pay Raise. Father owes child support to Mother of $700 per month based on an income at the time the child support was originally calculated of $60,000 per year. Father receives a promotion and a pay increase to $110,000 per year, but Mother doesn’t learn about Father’s increase in income for over a year. When Mother does learn about Father’s raise, she promptly files to modify child support and finds the child support will increase to $1,000 per month. Despite acting diligently to file for modification once Mother learned of Father’s pay raise, Mother cannot obtain the child support modification retroactive to the date Father received his pay raise. The modified child support amount will take effect the first day of the month after Mother served Father with her modification action.
Arizona parents who pay or receive child support must remember that child support may not be modified retroactively under Arizona law. Parents should keep themselves informed of changes in circumstances that could justify a modification of child support. When a parent becomes aware of changed circumstances justifying an increase or decrease in child support, the parent should act immediately to file and serve her support modification action in order to avoid the underpayment or overpayment of child support.
Copyright © 2013, 2019 by Scoresby Family Law – J. Kyle Scoresby, P.C. All rights reserved.
You can also watch my video on child support modification below.
