{"id":2151,"date":"2019-03-23T17:08:42","date_gmt":"2019-03-24T00:08:42","guid":{"rendered":"http:\/\/scoresbyfamilylaw.com\/blog\/?p=1723"},"modified":"2019-11-23T22:26:35","modified_gmt":"2019-11-24T05:26:35","slug":"timing-is-everything-in-child-support-modification-cases","status":"publish","type":"post","link":"https:\/\/scoresbyfamilylaw.com\/blog\/2019\/03\/23\/timing-is-everything-in-child-support-modification-cases\/","title":{"rendered":"Timing is Everything in Child Support Modification Cases"},"content":{"rendered":"

\"images\"<\/a>When it comes to Arizona child support modifications, timing is everything. \u00a0Child support is always modifiable in Arizona when circumstances change. \u00a0These 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. \u00a0Child support may also be modifiable when parenting-time schedules change.<\/p>\n

Arizona does not, however, permit retroactive child support modifications. \u00a0A.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

[for modification] . . . .” \u00a0“Notice” of the petition to modify is usually the date the petition is served on the other parent. \u00a0If a parent seeking a modification of child support can prove that the other parent had actual knowledge<\/em> of the petition to modify before the date of service, however, the court may find that the support modification is effective on the first day of the month after the parent received that actual knowledge (notice), even if formal service did not occur until a month or two later.<\/p>\n

Under the statute, the court has discretion to make a child support modification effective at a date\u00a0later than<\/em> the first day of the month after notice of the filing. \u00a0A later effective date may be appropriate when the change of circumstances warranting a change in child support occurs sometime\u00a0after<\/em> the modification paperwork is served. \u00a0For 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.<\/p>\n

The statute does\u00a0NOT\u00a0<\/strong>allow the court discretion, however, to make a support modification effective at a date “earlier than the date of filing the petition for modification . . . .” \u00a0A.R.S. Sec. 25-327.A. \u00a0This statutory restriction makes the dates of filing and service of a petition to modify child support absolutely critical. \u00a0Parents 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. \u00a0Even the loss of a job or the onset of a physical disability will not justify a retroactive child support modification.<\/p>\n

Consider these three examples<\/strong>:<\/p>\n

Example 1 — Payor’s Loss of Job.<\/b> \u00a0Father owes Mother child support of $900 per month based on his salary of $80,000 per year. \u00a0The child support is paid by wage assignment (garnishment). \u00a0Father is laid off from his job, and the wage assignment stops because father has no wages from which the child support can be paid. \u00a0Father assumes his child support obligation is suspended while he looks for work. \u00a0 Father diligently applies for jobs, and after a year, he finally lands a job earning $50,000 per year. \u00a0Father then files to modify child support. \u00a0Father 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<\/em>. \u00a0 Father learns his child support obligation was NOT suspended when he lost his job. \u00a0He 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. \u00a0Had 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.<\/p>\n

Example 2 — Emancipation of Older Children.<\/strong>\u00a0\u00a0Mother and Father\u00a0have 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. \u00a0 Father pays child support to the Mother of $1,100 per month. \u00a0The 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. \u00a0 Father is busy and neglects to file and serve his child support modification action for six months–until the month of November. \u00a0 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). \u00a0He 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). \u00a0Father 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.<\/p>\n

Example 3 — Payor’s Pay Raise.<\/strong> \u00a0Father 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. \u00a0Father 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. \u00a0 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. \u00a0 Despite acting diligently to file for modification once Mother learned of Father’s pay raise, \u00a0Mother\u00a0cannot<\/em> obtain the child support modification retroactive to the date Father received his pay raise. \u00a0The modified child support amount will take effect the first day of the month after Mother served Father with her modification action.<\/p>\n

Arizona parents who pay or receive child support must remember that child support may not be modified retroactively under Arizona law. \u00a0Parents should keep themselves informed of changes in circumstances that could justify a modification of child support. \u00a0When a parent becomes aware of \u00a0changed circumstances \u00a0justifying an increase or decrease in child support, the parent should act immediately to file\u00a0and serve<\/em> her\u00a0support modification action in order to avoid the underpayment or overpayment of child support.<\/p>\n

Copyright \u00a9 2013, 2019 by Scoresby Family Law \u2013 J. Kyle Scoresby, P.C. All rights reserved.<\/p>\n

You can also watch my video on child support modification below.<\/p>\n