Schwartz v. Schwartz – Modification of Support Requires Material Change in Circumstance

Posted by Steven D. Eversole | Feb 10, 2015 | 0 Comments

When it comes to the financial support of children, courts in Alabama do not consider it a fluid matter. Once support orders are set, they are difficult to change. Exceptions and requests for changes are carefully considered only when there has been a material change in circumstance.

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Per Alabama Rules of Judicial Administration, Rule 32, Child-support guidelines, a party seeking modification of a previously-set child support order must plead and prove a material change in circumstances, which is shown to be both substantial and continuing since the last order of support.

Courts may have varying interpretations of what constitutes a “material change,” but generally, such changes might include:

  • One parent's loss or change of a job, resulting in a substantial loss of income
  • One parent's promotion or job change with significant raise
  • Changes in costs for health care/insurance coverage
  • Changes in costs for child care
  • One parent's move out-of-state, resulting in higher parenting time costs

It's worth noting if a substantial change is the result of one parent's intentional actions (i.e., quitting a job or making an unnecessary move), family courts do not look favorably on such actions. The judge may in these cases consider one's potential income, rather than actual income, in reaching a conclusion.

Birmingham child support attorneys want to stress too the only way you can obtain a formal child support modification is through a declaration from the court. Even if you and the other parent agree to an alteration in the support plan, any modification not formalized in court can be later challenged.

In the recent case of Schwartz v. Schwartz, the Nebraska Supreme Court was tasked with weighing whether a trial court improperly granted modification to a father asserting substantial change in mother's income, while also granting her a credit for health insurance premiums she paid. The court affirmed in part, reversed in part.

According to court records, the pair divorced in 2001 and the court granted custody of their minor child to father in 2006, at that time ordering mother to pay child support. As part of that order, father was ordered to maintain child's health insurance. Mother was ordered to pay any non-covered health care costs in excess of $480 annually. In 2011, mother's monthly support obligation was reduced to $250 monthly.

Two years later, father requested a child support modification, asserting mother's income had increased by more than 10 percent.

At trial, father provided evidence the child was covered under his health insurance policy. However, mother also provided proof the child was covered under her employer health insurance policy. Trial court agreed there had been a material change in income, increased her monthly obligation to $300, but deducted costs she paid for her subsequent child and gave her a credit for health insurance premiums paid, bringing her total monthly contributions for child to $293.

On review, the state high court found trial judge had not abused discretion in granting mother a deduction for her subsequent child, but did abuse its discretion in giving mother a credit for health insurance premiums. Although mother argued it was in child's best interest to have a secondary health insurance policy, the court never ordered her to do so, and therefore it was improper to give her credit for the policy. The court also affirmed the overall increase based on mother's increase in income.

Although some child support modifications, like the Schwartz case, will require back-and-forth – particularly where parties disagree – in some cases, it may be as simple as your attorney filling out a short form with the court for a small fee. The length and complexity of the process will depend on the underlying facts of your case. It will be important for an experienced lawyer to review your case before determining how best to proceed.

Additional Resources:

Schwartz v. Schwartz, Jan. 23, 2015, Nebraska Supreme Court

About the Author

Steven D. Eversole

J.D., Samford University's Cumberland School of Law, Birmingham, Alabama B.A., University of Alabama, Tuscaloosa, Alabama


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