We have seen an uptick in post-decree cases lately. In many of these cases, people were divorced with younger children. Their children have grown older; however, their original judgments or agreements didn’t address things like cell phones, automobiles and insurance, extracurricular activities, and college costs. Many are finding the need for mediation to work through many areas of conflict, including child support modification. When it comes to modifying an original agreement, you can choose your own adventure!
Mediation or Litigation? Two Case Studies
Here are two real stories showing the difference between mediation and litigation regarding modifying child support. First, it is important to know that here in the State of Indiana, the Indiana Code and Laws that the General Assembly has passed regarding Family Law state the following when it comes to Child Support Modifications:
Indiana Code Title 31. – Family Law and Juvenile Law Indiana Code 31-16-8-1. Modification or revocation of child support order or maintenance order:
Sec. 1. (a) Provisions of an order with respect to child support or an order for maintenance (ordered under IC § 31-16-7-1 or IC § 31-1-11.5-9(c) before their repeal) may be modified or revoked.
(b) Except as provided in section 2 of this chapter, and subject to subsection (d), modification may be made only:
(1) upon a showing of changed circumstances so substantial and continuing as to make the terms unreasonable; or
(2) upon a showing that:
(A) a party has been ordered to pay an amount in child support that differs by more than twenty percent (20%) from the amount that would be ordered by applying the child support guidelines; and
(B) the order requested to be modified or revoked was issued at least twelve (12) months before the petition requesting modification was filed.
(c) Modification under this section is subject to IC § 31-25-4-17(a)(6).
(d) Incarceration may constitute a change in circumstances so substantial and continuing as to make terms of an order unreasonable.
(e) For purposes of a petition to modify or revoke an order with respect to child support, the order described in subsection (b)(2)(B) refers only to an order in which:
(1) the amount of child support has been established or modified; or
(2) a petition to modify the child support order has been denied on the merits for a reason other than lack of timeliness.
The order described in subsection (b)(2)(B) does not include an order solely concerned with custody, parenting time, or other issues ancillary to the amount of child support, or an order that merely construes an existing order for child support, even if the order refers to or relates back to the order for child support.
It is common that through the years since people have been divorced, one or a few of the above-referenced requirements for modification have occurred. One of the most common requirements is Sec. 1 (b)(2)(A), a 20% difference in income levels since the court accepted the original order.
What are the child support guidelines, you may wonder? I won’t list them all, but you can read the guidelines here: https://www.in.gov/courts/rules/child_support/index.html
Choose Your Own Adventure: Mediation Modification
We recently had clients who came to Keystone Mediation to discuss issues they were having regarding their children. Like most in this situation, they had been divorced when their children were young. They have different employers from when they divorced, and their children are ten years older. We only needed one session to work through many of the issues the parents were having, and they were able to reach an agreement on all matters. They both recognized the need for their children to be adequately and appropriately supported. The couple agreed to exchange three recent paystubs with one another and the mediator to verify income amounts. Using the child support guidelines, it was determined that the child support amount should be changed quite significantly. Although the party who was to pay more in support wasn’t necessarily ecstatic about it, they realized it was in the best interest of their children and agreed to have the support changed.
Keystone Mediation drafted an Agreement between the parties that they both signed and attested to through a notary. Keystone then filed the agreement and other required documents with the Court on their behalf, which is permissible through Indiana’s ADR Rules (Alternative Dispute Resolution). The court accepted their documents, and the case was closed.
It took one week to meet with Keystone Mediation, complete the required forms, and have a judge approve their documents. The total cost was $600 for Keystone’s services which were split at $300 each.
Choose Your Own Adventure: Litigation Modification
This experience comes from the litigation method of modifying child support. A father lost his full-time employment during the pandemic. He decided to start his own business with a business partner and created an LLC partnership. Because the father had his income drastically reduced, he was paying for his health insurance, and he had taken money from his retirement funds to fund his new business venture, he contacted his attorney and filed a petition with the court to amend his child support.
The mother received notice of the father’s petition and went and hired a new attorney to represent her in court.
In Lake County Indiana, local court rule LR 45-FL00-15 states the following:
- In all relevant cases including dissolutions, separation, paternity, post-decree, or support proceedings and, irrespective of which court, each party shall prepare and exchange, within 60 days of initial filing for dissolution or separation or within 30 days of filing of any paternity or post-decree matters, the appropriate Financial Declaration Form (see Appendix “I” and “J”). These time limits may be extended or shortened by court order for good cause shown. In those cases where there is service, but no appearance by counsel, it is the responsibility of the initiating party to provide the other party with the appropriate blank Form and to notify that party of the duty to prepare and serve the same.
Mandatory discovery is required within thirty days even for something as simple as a modification of child support outside of mediation. The father and mother had to provide each other with the required financial declaration forms and three years of Federal Income Tax Returns for the last three taxable years, including all W2s and 1099s. They also had to attach proof of all wages earned in the present year up to the date of their responses.
To make things more complicated, the mother made allegations of her ex-husband possibly hiding money in his new business that would result in her having to pay child support. Her attorney asked the father for financial documents related to his new business. Due to the fact he was in a partnership with another person not related to their modification, the business partner did not give their consent to provide their company’s financial documents. The father’s attorney filed a response notifying the mother’s attorney that they would not comply with that request without an order from the Court as it was an unreasonable request.
The parties were given a status hearing date five months from filing of the petition as to where they were in completing the mandatory discovery and presenting evidence as to the child support guidelines that each side is required to prepare. The mother’s attorney asked for a contested hearing over the business’s financial records.
This case has gone over six months and is still not resolved. The parties are set to return to Court to present evidence and argue their case regarding the need to modify the child support. The parties have missed work multiple times to attend their scheduled court dates and each have spent well over $3,000 on their attorneys for their services.
The result will most likely be determined by a judge many months after filing of the Petition to Modify Child Support.
These are just two real examples of the different adventures people can choose when it becomes necessary to make changes to an original divorce agreement or judgment. When you choose YOUR own adventure, choose wisely!