Child support does not automatically modify when there is a change in circumstances that warrants it, a party must file a supplemental petition for modification of it. When there has been a substantial change in circumstances warranting a modification of child support a parent needs to file a supplemental petition for modification of child support as soon as possible after the change has occurred as a court can only modify child support from the date of filing of the supplemental petition.
Where courts have attempted to modify child support from before the date of the supplemental petition they have been reversed on appeal. For instance, in Tatum v. Tatum the Fifth District Court of Appeals for the State of Florida reversed the trial court’s decision to retroactively modify child support to a date prior to the date of the filing of the petition for modification.
If you need to seek an upward or downward modification of child support you need to get your supplemental petition filed as soon as possible after the substantial change in circumstances has occurred so that it the change can be retroactive to as close to the date of the change warranting the modification as possible.
Where a parent fails to pay court ordered child support pay checks can be garnished, bank accounts can be frozen, a driver’s license can be suspended, passport renewal can be denied, and a tax refund can be intercepted. A parent can even be incarcerated if found in contempt.
Where a parent fails to pay court ordered child support the other parent or the Department of State, Child Support Enforcement Program, can seek to have them held in contempt of court. To establish a parent is in contempt for the non-payment of child support it is necessary to establish the willful violation of the court’s child support order. ie. that a parent presently has the money to pay the court ordered child support, but instead chose not to comply with the court ordered child support obligation.
An order of contempt must be in writing and contain findings of fact that a prior order requiring payment of child support was entered; that the parent failed to pay the child support as ordered; that the parent had the ability to pay; and that the parent willfully failed to pay the child support. The burden is on the party seeking a finding of contempt to establish the willful violation of the court’s order by clear and convincing evidence.
An order must specify the amount to be paid and the manner of payment. If an order imposes incarceration or another coercive sanction it must specify how the parent can purge themselves of the sanction. If a parent still fails to comply the movant must file an affidavit of non-compliance and the court can then issue a writ of bodily attachment for the arrest of the non-compliant party so that they can be brought before the court within 48 hours for a hearing on whether they have the present ability to pay and if so what sanctions the court will impose.
If you have questions about establishing child support, enforcement of an existing order, or modification of child support contact our attorneys to help answer your child support questions.