MODIFYING YOUR CHILD OR SPOUSAL SUPPORT PAYMENTS IN CALIFORNIA, WITHOUT A LAWYER

I. INTRODUCTION

If you are divorced and have been paying [the "Payer"] or receiving [the "Payee"] child or spousal support payments for several years under a divorce judgment [decree], it is likely that the monthly payment no longer suits your circumstances. Due to change in income of the payer, the payee, or both, or changes in timeshare with the children, inflation, or other factors, what may have been appropriate a few years ago, no longer is.

Fortunately, the amount of child support may be modified at any time .FC 3651 ["FC" means the California Family Code]. So too with Spousal support, unless the parties have agreed in writing or open court that it may not be modified. FC 3651(d). The Payee should act without delay. If increased support is ordered, it cannot be made retroactive any earlier than the date that the motion is filed.

In California, a change in support payments can be done by a simplified method that is designed for use without a lawyer. The first step is to determine the other party’s current income and expenses

II. OBTAINING DISCLOSURE OF THE OTHER PARTY'S INCOME AND EXPENSES

Once a year, you have the right [FC 3660-8] to exchange updated information with the other party on an Income and Expense Declaration FL-150 ["FL" means Family Law form]. The prior year’s tax return and current pay stubs must also be provided. FC 3665. You initiate the exchange [FC 3664] by sending the other party, by certified mail, return receipt requested, a Request for Production of an Income and Expense Declaration FL-396.

If no response is received within 35 days, payee can get current income and benefits information directly from payor’s employer, using FL-397, also sent by certified mail, return receipt requested, with a copy served on the payor. FC 3664(b). Payee may challenge the production of information on privacy grounds, by filing with the court a motion to quash or modify the request. Civil Code 1987.1

To insure that you get the tax return that was actually filed, you can ask the other party to have it sent to you directly by the IRS. Go on line to www.irs.gov and get IRS Form 4060, fill it in for the other party, for delivery to you, and have the other party sign and send it to the IRS.

III. COMPLYING WITH CALIFORNIA CHILD SUPPORT "GUIDELINES"

Before entering or modifying a child support order, the judge [of commissioner] is required to apply statewide "Guidelines." The word "Guidelines" is a misnomer. These are fairly rigid requirements, which produce a computer-generated dollar figure that the higher wage-earner must pay to the lower wage-earner. The computer program can be accessed at a law library. Entering the gross income, tax filing status and timeshare with the children and a few other factors into the computer, the payment figure is produced. The computer printout tells the payment figure, and it will be ordered, unless the facts justifying departing from the Guideline amount. The parties may stipulate to an amount below the Guideline, with an appropriate declaration [FC 4065].

IV. STIPULATING TO A NEW CHILD SUPPORT ORDER

If you and the other party are able to agree on the new child support figure, you can file a stipulation and it will be incorporated into a court order. Use the form entitled Stipulation to Establish or Modify Child Support and Order FL-350. Parenthetically, the Judicial Council has also approved an optional form (FL-355) for stipulated custody/visitation orders. Changes to Spousal support can be agreed to in writing, without an order.

V. PREPARING THE MOTION FOR SIMPLIFIED MODIFICATION

To comply with the legislature’s intent [FC 3680] to provide simplified modification, the Judicial Council has promulgated four forms: Two forms are instruction sheets explaining the application and opposition procedure in non-legal language (Fl-391 and FL-393); and the other two are the special motion and responsive declaration forms (FL-390 and FL-392). The four forms are:

Notice of Motion and Motion for Simplified Modification of Order for Child, Spousal or Family Support Order (FL-390).
Information Sheet – Simplified Way to Change Child, Spousal or Family Support (FL-391).
Responsive Declaration to Motion for Simplified Modification of Order for Child, Spousal or Family Support (FL-392).
Information Sheet – How to Oppose a Request to Change Child, Spousal or Family Support (FL-393).

Copies of the forms may be obtained on the Judicial Counsel website, or at the Family Law Information Center at the family law courthouse.

Basis for modification: The simplified procedure does not change substantive law respecting the predicate for a modification. Thus, the applicant must establish changed circumstances – either a significant change in either party’s income; or, with regard to child support, another change in circumstances (e.g., an authorized "hardship," a time-sharing change, etc.) that yields a new guideline amount of support. (See "item 6" on FL-390 motion form)

Procedure: The application, opposition and hearing procedures are explained in the FL-391 and Fl-393 "Information Sheets" Basically, normal modification procedures apply, and the usual forms and financial information will be required. The only difference is that application is made by the FL-390 Notice of Motion; and opposition is made by the FL-392 Responsive Declaration. Proofs of service are contained on the reverse sides of those forms.

VI. CONCLUSION

To save time, stress and hard feelings, you should try to negotiate an agreement. If that fails, you may wish to try mediation. If there is a custody issue, a free one-hour mediation session can usually be obtained with the family law court ["Conciliation Court"]. In this, as in other areas of Family Law, it is better to work at reaching an agreement by negotiation or mediation, than to go and fight in court.