We all have times when life deals us unexpected situations and those situations can have a direct effect on our financial well-being. We look at our balance sheet for ways to either reduce expenses or increase income. If you’re a divorced couple with children, one of those budget items will likely be child support. Whether you’re the parent paying the money or the one receiving it, you may wonder if you can arrange to modify child support.
It is possible to modify child support in Tennessee, whether you are the payor or the payee. You need to demonstrate to a court that there has been a change that is both substantial and material since the time the original support plan was implemented. The variance test--a specific mathematical formula--will be used by a Tennessee family court to determine if the changes in financial condition are, indeed, substantial and material.
How Tennessee Determines Child Support
Perhaps the best way to start an understanding of how support modification requests are viewed by a court is by reviewing all considerations that went into the original support plan.
The state of Tennessee has issued Child Support Guidelines that judges are to rely on. Everyone’s case is different, but the guidelines at least allow for some level of standardization. The fact that each judge is at least considering all the same factors makes it easier to understand, not only how a support plan is drafted, but what changes might warrant modification.
The Support Guidelines call on family court to look at each party’s income. That includes wages and salaries. It includes self-employment income. It also includes commissions and tips if you or your spouse are compensated on that basis. The court considers the value of stock portfolios, 401(k) plans and bank accounts. The value of any benefits paid out under Social Security, workers’ comp or other government programs are factored in.
In short–if it’s money that’s going on your IRS form in any way, it’s going to be included as a consideration in the final child support agreement.
The support plan that derives from this initial calculator is considered to be “correct” in the eyes of the court, but also “rebuttable.” What that means is that either spouse can bring up factors they believe should result in a different payment schedule, but the burden of proof will lie on that spouse to prove their case.
Medical expenses that are higher than the norm (i.e., routine office visits and an occasional trip to the ER with a badly sprained ankle) might be used to rebut the presumption that the initial plan is accurate. Special education needs are another. These are expenses that must be shared equitably between the spouses.
Courts will also give appropriate consideration to whether a spouse has additional children to support. If the person paying the support also has children through another relationship, this might be used as the basis for establishing a lower support payment than the guidelines would otherwise indicate.
Once all of this has been taken into consideration, a child support plan is put in place as part of the broader divorce settlement agreement. If anyone wishes to change this plan, it will now require a modification order. The courts must be shown that a change in circumstances has taken place, one that is causing hardship to one of the parents. The key legal vehicle used to make this decision will be the variance test.
The Variance Test in Tennessee
The number the courts will key in a support modification request is 15%. That means there should be a 15% change in either parent’s monthly income. That can come when the parent making the payments receives a significant promotion at work. Or it can come when new medical or education expenses—ones not able to be considered at the time of the original order—are a burden on the parent receiving the payments.
15% is the standard variance test measure, but for parents on tighter budgets, even small variances can have a big impact on the monthly budget. The state of Tennessee recognizes this and cuts the variance test in half, to 7.5%, in certain cases.
To qualify for the lower variance test measure, the parent must be unemployed or underemployed (based on their education and experience) and their income must be at or below the federal poverty line.
A parent seeking either the 7.5% variance rate, or a child support modification in general, because of unemployment or underemployment must be in that situation involuntarily. A parent cannot quit their job and expect child support payments to change. A parent cannot take a lower paying, but more fulfilling, job and expect their child support payments to change.
If either of these situations do occur and result in a modified support order, it’s possible a judge could order the relevant parent to provide proof of effort to find a job that will enable them to return to the original payment schedule.
When Changed Circumstances Are Harder to Measure
A change that is both material and substantial can also come in ways that are less measurable. Let’s say the paying parent remarries. By itself, this does not alter the original support plan. But if the paying parent has another child, it can be considered a substantial change in circumstance and result in reduced payments.
Furthermore, child support is just one part of the overall program of child custody. What happens if the visitation schedule changes? The parent receiving the payments is usually the primary custodial parent as well (the legal term for defining the parent whom the kids stay with most of the time). What if they seek a restriction on visitation and get it? The reasons why such a restriction might be granted are beyond the scope of our discussion here, but one ripple effect might be the court also reducing support payment amounts.
The paying parent having to serve jail time is quite the significant change in circumstance. In 2020, the state of Tennessee passed legislation that included a provision where anyone subject to 180 days of prison time (approximately six months) could request a child support modification on that basis.
How to Get a Child Support Modification Order in Tennessee
Perhaps you and your child’s other parent both agree on the need for a changed payment plan. That’s terrific and it can certainly make the legal process of modification less contentious. But make sure that the legal process is a part of this.
It’s not uncommon for divorced parents with children to have figured out an amicable way to share in the raising of their children. So, if one of the kids suffers a serious injury that requires a lot of medical treatment and rehab, the paying parent may well see the need to step in with more money to help. Or, if the paying parent gets laid off, the parent who is home with the kids might be able to take less money for a little while.
Those agreements are great, but they do not have the binding force of law. Either parent could renege at any point and there is no recourse. Courts cannot enforce what they never issued or approved. Private agreements between spouses are meant as a starting point, not a finish line.
The real finish line comes with a formal request to a Tennessee court for a modification of child support payments. This process can include discovery–where each parent turns over all relevant information, financial and other, to the other parent’s attorney.
This process has benefits that go beyond having a binding agreement. The parents know exactly where each other stands financially, thus reducing the chance of either making accusations of deception later.
The legal process also allows a judge to look at the entire agreement and make an assessment regarding the best interest of the child. We know parents can find this frustrating–after all, who knows your child’s best interests better than you? The answer is no one, but a neutral third party might still see issues that someone else may not. Getting validation of your agreement by a judge is something else that can reduce the chances of disputes further down the road.
Connor & Roberts, PLLC Can Help
Seeking out a change in your child support plan is a sensitive area and requires an attorney who understands the law, the process and combines that with real human compassion for their client and the children involved. Connor & Roberts, PLLC has been serving the good people of the Tennessee Valley for a combined 40 years. Reach out to us by phone at (423) 299-4489 or contact us online today.