A divorce means a new reality for the couple and their children, and that includes a new financial reality as well. During your divorce, child support was calculated according to the Alabama Child Support Calculation Guidelines. This is based on the parents’ combined income including the value of assets including pensions 401k or retirement benefits.
The judge will combine the parents’ income and determine the “Basic Child Support Obligation” or BCSO. That is the amount they should be spending on their child(ren) every month. It is not based on the actual cost to raise the child(ren).
That number is divided between the parents based on their monthly income.
Alimony is intended to help the lesser earner adjust to his or her new financial reality. It can be delivered in a lump sum or paid according to a schedule of regular support payments. Alimony can be awarded for temporary support or permanently, depending on whether the case meets strict guidelines under Alabama law HB 257.
As we know, things can change as time goes on and it usually does. If you or your former spouse’s financial situation has changed and you believe an adjustment is needed, this is the time to consider hiring a family law attorney to help you navigate the complex and challenging laws of our state.
Adjustments to Child Support
If there is a change to one parents’ income, either up or down, there can be modifications made to child support. Child support is based on a statutory formula to calculate the exact amount of support needed. It is not based on what it actually costs to raise a child.
You will have to prove the change in circumstance and file a motion to modify the support with your county court clerk’s office. The court will need to have proof of the changes in circumstance. You cannot guesstimate here.
If both parents agree, they can create a new child support agreement with a new monthly amount.
Understand that having more children with another partner will not factor into the decision over this child’s support.
What might factor in may include:
- An income increase – There may be several ways in which the income of one former spouse may increase. He or she may get a new job with a raise or bonus. He or she may remarry to someone who is a high earner. While the assets of the new spouse will not be tapped, it is assumed that the new spouse is covering some of the household bills, therefore lowering his monthly expenditure. That may generate a new child support agreement.
- An income decrease – If one of the former spouses remarries to someone not earning a living, it could be argued that his or her monthly expenditures just increased. That former spouse, however, is not eligible for a reduction in child support because he or she voluntarily increased his or her expenses by marrying. If the former spouse loses his or her job, the judge will decide if unemployment is likely to be a temporary or permanent situation.
- Adjustments to Alimony – A change in circumstance may call for a modification in periodic alimony, while lump sum cannot be changed. The petitioner must provide evidence that there is a change in circumstances since the divorce settlement, such as an increase in one former spouse’s cost of living or a decrease in the payor’s salary. The burden of proof is on the petitioner.
Judges have discretion to adjust support upward or downward and you have the discretion to file an appeal which may or may not be successful.
If one party has a sudden increase in his or her income the petitioner will file that there has been a “material change in the circumstances” of one or both parties.
The judge will take into consideration those changes as well as the life factors such as whether one of the parties has health challenges or has remarried.
It’s important to remember that alimony was determined based on marital assets at the time of the divorce. It was part of the parties’ property settlement, regardless of the current income of either party.
If anything, the courts are moving to limit alimony to five years unless the couple has been married for more than 20 years or the supported spouse has no career prospects.
If there is a material change in circumstance, it is unlikely that your former spouse will volunteer to increase child support or alimony payments.
This is when you likely will have to take legal action to petition to court and make your case. Our Dothan family law attorneys can help explain the changes in family law and how they apply to your particular circumstance. Please call Smith Law Firm in our Dothan office to arrange an initial consultation at (334) 702-1744.