Modern Family Matters

Breaking Down Washington Child Support Modifications & the Technicalities of the Legal Process

February 28, 2023 with Christy Carpenter Season 1 Episode 83
Modern Family Matters
Breaking Down Washington Child Support Modifications & the Technicalities of the Legal Process
Show Notes Transcript

We sit down with Limited License Legal Technician, Christy Carpenter, to discuss the factors needed to get your Washington child support modification, including the legal steps involved. In this interview, Christy discusses the following:

•    Who can change a child support order?
 •    What is Required to Get a Child Support Modification?
 •    Are informal agreements between ex-spouses binding on their child support obligations?
 •    When where and how you can modify a child support order.
 •    Why it’s important to act quickly if you need to modify your child support order.
 •    What to do if your original child support order was made in another country or state.
 •    Why documenting life events and changes in circumstances is important.
 •    How your child going to college will or will not affect your child support order.
 •    …and much more!

If you would like to speak with one of our attorneys, please call our office at (503) 227-0200, or visit our website at https://www.pacificcascadelegal.com.

Disclaimer: Nothing in this communication is intended to provide legal advice nor does it constitute a client-attorney relationship, therefore you should not interpret the contents as such.

Intro:
Welcome to Modern Family Matters, a podcast devoted to exploring family law topics that matter most to you. Covering a wide range of legal, personal, and family law matters, with expert analysis from skilled attorneys and professional guests, we hope that our podcast provides answers, clarity, and guidance towards a better tomorrow for you and your family. Here's your host, Steve Altishin.

Steve Altishin  
Hi, everyone. I'm Steve Altishin, Director of Client Partnerships here at Pacific Cascade Legal. And today we have our Limited Licensed Legal Technician, Christy Carpenter, with us to talk about modifying a child support order. Hey, Christy, how you doing today?

Christy Carpenter  
I am doing wonderfully. How are you, Steve?

Steve Altishin  
I'm doing well. It's not raining. But that's a good thing. So Christy, before we started on modifying child support orders, can you just briefly go over what a child support order actually is, and what it encompasses?

Christy Carpenter  
Okay, a child support order sets forth a monthly payment that an obligor parent is to make, and that child support payment is meant to cover the necessities of life for the child. So shelter, food and clothes basics. You know, whatever that child's portion of rent or mortgage utilities, and then food and clothing, there are other expenses that a child support order can address that would be additional payments. And some of those expenses are medical, whether that's the premium or any out of pocket expenses like braces or co pays daycare, dependent care if a child is disabled and needs homecare education, which is not things like school supplies, because that's to be included as part of the basic child support payment. I'm talking extraordinary expenses, like private school tuition, tutoring, driver's ed classes, college application fees, that kind of thing, then we've got long distance transportation. So if the parents live great distance from each other, and the child needs to be transported back and forth, or one of the parents goes back and forth for visitation then that can be included. And then the last is kind of a encapsulates other expenses like summer camps, sports cost, extracurricular activities, like music, lessons, scouts, that kind of thing.

Steve Altishin  
Got it. So I mean, obvious question, but I love to ask the obvious question. What you can put in a child support order, that is the only really thing that you can modify in a child support order, is that right? 

Christy Carpenter  
Correct.

Steve Altishin  
That makes sense. But it's sometimes some of the straightforward stuff can be really tricky. And so let's get now to modifying then a child support order. And, you know, the basis for doing it, you know, when can you do it even?

Christy Carpenter  
Okay, so there are three legal bases for a modification of child support. The first circumstance, when you can modify you can modify at any time since entry of the prior order. And you can do that if there's been a substantial change of circumstances of a parent or a child, the most common in which happened recently as an involuntary under or unemployment situation. And that happened a lot during COVID. Because obviously, people mainly in the service industries could no longer work. And so I did a lot of modifications based on that sort of substantial change. There are reasons could be incarceration of a parent who is obligated to pay or release from incarceration and injury of a paying parent that affects employment, that kind of thing. So the second circumstance when you can modify is if it's been one year since the prior orders entered, and the order works what's called a severe economic hardship. So let's say suddenly, the paying parent has huge medical bills due to a complication. And they have to pay those medical bills to now the courts going to weigh whether that whether the paying the medical bills takes priority over paying child support, probably not in this example. So severe economic hardship, and you have to prove that the other criteria for modifying after one year is a child if you need to extend support for a child beyond aged 18, who is still in high school. Now most child support orders terminate the support payment when a child turns 18 Or when they graduate from high school, whichever is later. But I have seen some orders terminate child support at 18. So sometimes a child turns 18, their senior high school and you need to extend it. Also, if a child has to repeat their student's senior year, which again, I've had that happened during COVID, because they just didn't, weren't able to keep up with the requirements to graduate. And so a child turns even 19 When there are senior and we need to extend that. The third criteria is after two years since the prior order was entered, you can modify, there's been a change in camera via their parent. And that's probably the most common basis for modification.

Steve Altishin  
Got it. On the anytime one did use the term substantial change of circumstances, I'm assuming that means that the change has to be a big change? And if I get a $2 raise, that may not be substantial, maybe it would be, but it's something bigger than smaller, I'm assuming,

Christy Carpenter  
Right. For example, winning the lottery. Who wins a lottery, obviously, they can support the child more than they had. So that's major. And I kind of went over some of the other things. So what can be modified? First thing that can be modified is changing who the payor is. And that would happen in the case if a child or children moved from the primary residence of one parent to another. So you need to change the paying parent, the monthly payment can be modified. And it's important to know that the monthly payment can only be met modified from the time that the petition is filed forward. Let's say a parent has been unemployed due to COVID for one year, and they file a petition. Well, the change that any court makes really only from the date that the petition is filed, you can't go back and ask that the modification be retroactive for that year, you can modify the end date for support. And we just talked a little bit about that. If a child is still in high school, you can add a provision for post secondary support. And that's very common. Normally, most of your child support orders have a they'll reserve that provision that parent or parents pay for college for a child. And it's reserved because the information really is not known when a child is for example, two years old, you don't know if a child's budget, you don't know what the parameters of that would be. So normally, it's reserved however, a lot of parents do go ahead and put in that they will pay. Typically, it's an agreed circumstances that they'll go ahead and pay for college for a child. So you can add that post secondary support provision. And when a court is considering whether to order the parents to pay a child's college tuition and other expenses, they will consider several factors. So the first is what were the expectations of the parents while they were together? Did they talk about you know, sending their kids to college? Did they maybe put money into a five to nine account? What is the parents level of education? If both the parents have college education, it's more likely that a court would order that for a child. What are the child's desires aptitudes and abilities. Obviously, if a child is getting straight A's, and they kind of know what they want to do, like during their junior or senior year, they have they maybe have already applied for college, they've already taken their PSAT and done well. So the court will look at that the type of post secondary education whether it's for year to year trade, school apprenticeship, and then even running start, if a child is in high school, I believe most of the fees per Running Start are covered. But you can request that the parents pay whatever fees are remaining for that the standard of living of the parents. And so the court will look at really whether they have whether they established that that higher standard of living while they were together. And again, that kind of relates to expectations. And then the last criteria is the financial resources that the parents, you know, a court is not going to order a parent who's making $20 an hour to pay for their child's college education. So as I kind of got into college attendance needs to be imminent in order to not modify that provisions. So a parent if they're planning to do that needs to be prepared to file let your child's grades file acceptance letters, file, a lot of colleges put out what the average cost of attending is for a year. And they'll put out tuition fees, books, room and board and so you so you will have an estimation of what that will be. And so you'd want to file that if you did if you wanted to modify that section of a child support order. If indeed a court does order that the parents will pay post secondary education support, you can request that payment of the monthly support amount be extended during the months prior to the child starting so if the child I graduated in June, typically, the monthly amount would end in June. But you can ask to be paid in July and August if they started September. And that's just a provision I like to include. You can also ask that the monthly supportive amount continue, in addition to payment of the post secondary education expense, if a child is staying in the home while attending college, because obviously, that parent is still going to have those expenses for a child, you cannot ask for post secondary support beyond age 23, except in exceptional circumstances, such as disability. And you can also ask that the court extend medical coverage to age 26 If it's warranted. So that's the big one. You can also add or change provisions for payment of the other expenses that I mentioned earlier, such as medical daycare, long distance transportation activities. So if maybe if you had a bare bones child support or that didn't allow for any of those payments, then you could add them when you do a modification. And then the last item that you can change is who cleans the tax exemptions for the children. So often when you enter a child support initiatory Child Support Order initially, you may have several children, obviously, as they age out, they're no longer claimable on taxes. And so you may want to make changes to that.

Steve Altishin  
You mentioned early on that, I believe you said the obligor, or the obligee, can modify, ask to to modify. 

Christy Carpenter  
Either one, yeah. 

Steve Altishin  
When you get into this college stuff, and if one of them doesn't, I mean, can the kid ask to modify the support?

Christy Carpenter  
No, because the child is not a party to the action. 

Steve Altishin  
Got it, got it. So you also mentioned, and I thought it was really important and I just wanted to touch on this because it goes to my next question about the filing process and how do you get started, it's how important is it to get hold of someone like you, as soon as one of these things happen? Because I believe you said it goes just back to the date of filing, right?

Christy Carpenter  
Correct. Yes. So it's very important to not wait.

Steve Altishin  
Yeah. So the filing, the first thing you do, I mean, how do you get started?

Christy Carpenter  
So what I would do is prepare a summons a petition for modification and a proposed child support worksheet. Sometimes a client does not know what the other parent is earning. So we just estimate and we might kind of bump it up from what the last the income and the last order was, we also have to file so those are the state requirements, the summons petition on the worksheet. Each county in varies by county has other requirements for filings. So for example, in King County, and in most counties, you also have to file a financial declaration. And that's just a statement of income and what your monthly expenses and debts are. And most counties require submitting pay stubs, whether it's your most recent King County is the most stringent they want your last six months worth. You are generally also required to file your last two years tax returns and your last two years W twos or 1090 nines. Or if you're self employed, you'd file p&l or Schedule C, that kind of thing. Other proof of income, if you're not working could be retirement statements or disability statements. And then most counties do not require the filing of bank statements King County does they want you to file six months worth I may actually file bank statements if it's even if it's not required, because it's I want to show the court, for example, that my client is living from paycheck to paycheck. And so those statements provide documentation that that's the case. And then other and for example, other supporting financial information that you also might want to file to corroborate that kind of thing are copies of credit card and loan statements to show that you're paying on these debts, and they're, they're substantial medical utility bills, that kind of thing.

Steve Altishin  
It would seem to me that with the no retro rule, and a lot of stuff that you need to file when you file, it might be a good idea for either the person getting the child support or paying the child support to have some sort of a folder, accumulating this stuff, you know, inevitably something's going to happen and it seems like takes a couple months sometimes to get some of this stuff.

Christy Carpenter  
Right. It does. Some I mean, most people are are fairly tech savvy, but some people don't have access to bank statements for example, and they don't know how to get them They might be the kind of people that go to the bank to do their transactions and don't do online. So that's a consideration. Sometimes I may want more than just six months worth of bank statements. If we're asking for, for example, we can ask for reimbursement for overpaid daycare, or underpaid daycare. And so if a client is going back two years, then I'm gonna want to have, you know, their bank statements that show that they're making these payments. For example, if a parent was paying daycare of, you know, their share, let's say was $300 a month, and then we find out that the child had not been going to daycare for two years, then that person is entitled to reimbursement. And so they're gonna have to do quite a bit of homework to get the documentation to show show that, and then on that note, also, if there's information that we need from the other party, once the case is filed, we can do what's called discovery. And that is to require the other side to answer your questions and to produce documents, for example, to prove that a child was going to daycare and that they had been incurring those expenses than they had been paying them. So we we may want to do that kind of thing.

Steve Altishin  
Yeah. So that kind of leads to my next question. Once you file, what happens?

Christy Carpenter  
So once the case is filed, some counties provide what's called a case schedule. And that will just list the deadlines that you need to conform to regarding when a person is served. And when you need to file certain things when discovery needs to be completed. Most counties don't issue a case schedule. Again, King County is the most populous and organized and so they do issue it because they need to keep their cases, man. So we we arrange for the other side to be served. And the law allows the other side to be served by certified mail, I prefer to do personal service simply because the timeline for the other side's response is shorter. So personal service, they have 20 days from the time they're served to file a response to a petition, and then also their proposed child support worksheet and all of their frankly, all of their other documents, financial documents, financial declaration, that kind of thing. If a person is served by certified mail, we would do it to their last known address. And again from the date of delivery, and that that is tracked by USPS, they have 60 days to respond as opposed to the 20 days. So it's a longer time period during which they can gather all their materials and get them to us. Oh, and then another thing I wanted to point out is for petitioning parties who believe or who know or believe that either the child or either parent is receiving any public benefits. And that can include in Washington, it's Apple Health Care, a child can be covered by the state medical, or if they're received food stamps, or any kind of monetary assistance, they are required to notify the county prosecuting attorney Family Support section. And then the state may may appear in the case on behalf of the child. But more likely, they will simply want to review the child support order as it's going to be submitted for signature by the courts. And they want to see the final order and they want to be able to make any edits to it. And so that's something that I do just before we enter even an agreed order or before we got to trial.

Steve Altishin  
Got it. Is there always a hearing on this? Is that built into the system?

Christy Carpenter  
Yes, the for child support modifications, the state law is that you have what's called a trial by affidavit. And what that means is this is not a typical family law trial with testimony and exhibits and witnesses that kind of thing. It is basically a trial based on the documentation that each side submits. Now you do get a little bit of time for oral argument. Usually it's five minutes, it's can be up to 15 minutes per side, where you can tell the court your your story, and the court has the option to ask you questions. If you do want to have witnesses and actually testify, you can file a motion for testimony and have the court decide whether that's allowed. And one instance where I would say that would be might be important is if you have a daycare provider who is a family member because a lot of times there's a lot of fishing that's going on there. So questions about do they really get paying that kind of thing. And so I might want to have a daycare provider testified that they actually were providing the daycare and they sent invoices and they did provide the service is child support modifications and usually resolved within three to four months, okay, that's not bad, short chapter as opposed to divorces, which usually a year can take much longer than that often.

Steve Altishin  
And just, again, going to say it to just make sure everyone understands, it's not when the judge finally signs the order that it goes from there. It would then go back to when you filed.

Christy Carpenter  
Correct. Yeah. And that's, that would be stated in the order, you'd have a beginning date.

Steve Altishin  
So you were talking about changes of income and all that kind of stuff. So the court has to figure out the income and if it's enough to make a change. And what are some of the standards that they determine those things?

Christy Carpenter  
The court will consider almost all income regardless of what it is salary, overtime, bonuses, self employment income, income from second jobs, dividends and interest retirement income, disability income, spousal maintenance, if you receive that has to go in the worksheet, Social Security income, nearly everything. The only types of income that are excluded from calculations, but needs to be disclosed, regardless of whether they're excluded is income from a new spouse or domestic partner, that's really important if you're doing a modification, because that can have an impact on the court's decision. So if a person's newly remarried, and that the new spouse has $8,000 in income, the court will definitely consider that as how's the it's not actually included in the child support worksheet in the calculation itself, but it has to be disclosed in the worksheet. Got it. And not only spouses, even just new domestic partners, other exclusions or child support that a parent might be receiving from another relationship that's not included as income, or, again, any food stamps, monetary public benefits that person receives. And then income from second jobs. And overtime, generally, that's required to be included in the calculation itself. However, if they already can prove that they have that second job, or they have that overtime income, just because they're trying to pay down debts, and then once the debt is paid, they will no longer have that income, then the court can exclude the income from a second job, or overtime. Got it?

Steve Altishin  
What if I don't have income because I'm tired of paying, and I got to my boss and say, cut my income in half, you know, I'll work half time or I don't want to work. And then I'm gonna go in there and ask them to end child support. How does the court deal with that?

Christy Carpenter  
So what the court can do, or what the court shall do, if it finds that a parent is either underemployed or voluntarily underemployed, or unemployed, is it will impute income to that parent. And there is a priority list of how the court imputes income, the first would be, what the current rate of pay is, at 40 hours a week. So if a parent is making $40 an hour, but they're choosing to work only 20 hours a week, I would advocate for my client on the other side to impute that parent at $40 an hour, 40 hours a week. We can also go off historical rate of pay. If we don't know I was saying when you file a petition, initially, sometimes you don't know what that other parent is earning. So you can go off historical. And you could use the income in the current order child support, but I like to bump it up a little because we're presuming that a parent has gotten raises. And so we can go off historical rate of pay and increase it. If a party has not had much of a history of working. What I would do is probably impute that person out the state's minimum wage, which right now is very considerable as of 2023. It's now 1574 an hour in Washington. And there's the last resort. If you really have no clue. Let's say it's been 10 years since the current order was entered, you have absolutely no clue. You can go based on the federal median wage for a person a certain age. That's the last start though.

Steve Altishin  
So we're almost running out of time, but I do want to talk about one last thing, which is you mentioned the standard calculator, which generally you put in a bunch of figures, income, time with the kids, and it spits out what it thinks it should be. But you also talked a little bit about some things that might not be included when you're modifying and they call it a deviation. But there's some others, aren't there? I mean, can we have things other than income? What if I just inherited a bunch of diamonds but my income hasn't gone up? I mean, or things like that, can that be used?

Christy Carpenter  
Yes. So, a court can consider either an upward or downward deviation based on several factors, which again, you need to document and substantiate. First one is very common. And that's the residential schedule of the child. So if a child is spending a good amount of time with the parent who's obligated to make the payment, then you could potentially deviate downward for that person's payment, because obviously, they have increased expenses for a child living in their household, let's say 50% of the time, while the other parent may have decreased expenses, and you do need to sort of prove that that's the case. It's not an automatic thing. And that's especially if one parents, if the paying parent's income is much higher than the non obligate parent, then I've seen courts not deviate downward because of the rent and residential schedule. So and then the other thing is, it must not result in insufficient funds in the other parents household. So again, if the other parents only earning 3000 a month, and they're barely getting getting by, even if the other parent has the kids 50% of the time, you can't deviate down if the parent doesn't have money. Another reason for deviating downward would be children from other relationships. So if a paying parent has kids in their household that they're supporting, or is paying child support for other children not have a relationship, that parent could potentially deviate downward due to his obligations, possession of wealth, you kind of mentioned that diamonds. So again, the lottery scenario, if on the lottery, you can deviate upward because of substantial wealth. Now, the reason deviate downward would be debt and higher expenses. This needs to be debt that's not voluntarily incurred. And I mentioned like a medical issue that caused a lot of bills not voluntarily occurred. And then just one last point, generally, parents cannot agree to deviate downward, they can agree to deviate upward. But if that's the sole reason that they agree, a court generally is not going to go for that. And I've had a lot of orders rejected because I've had parents who wanted to agree to nothing, or because they felt like they both could care for the children and didn't need it. And of course, that's against public policy, there needs to be a child support payments.

Steve Altishin  
Yep, that makes sense, best interest of the child. So we're gonna have to go. But if you had one piece of advice, one word of wisdom to give someone in this kind of situation, what would it be?

Christy Carpenter  
Document, document, document. Because this is a you need to document your finances.

Steve Altishin  
Yeah, you said it's a trial by affidavit I mean, you've got to have the stuff there to make it work. So thank you very much, Christy, for joining us today. This was really, really informative. And once again, you've made it understandable, complex stuff, you know, to folks like me, which is no easy task. So thank you so much for joining us today. 

Christy Carpenter  
You're very welcome.

Steve Altishin  
Everyone else, thank you for joining us today as well. Till next time, stay safe, stay happy, and be well.

Outro:
This has been Modern Family Matters, a legal podcast focusing on providing real answers and direction for individuals and families. Our podcast is sponsored by Landerholm Family Law and Pacific Cascade Family Law, serving families in Oregon and Washington. If you are in need of legal counsel or have additional questions about a family law matter important to you, please visit our websites at landerholmlaw.com or pacificcascadefamilylaw.com. You can also call our headquarters at (503) 227-0200 to schedule a case evaluation with one of our seasoned attorneys. Modern Family Matters, advocating for your better tomorrow and offering legal solutions important to the modern family.