Every state requires parents to financially support their children, and family courts use a formula to calculate the amount each parent should pay. If there’s a change in circumstances later, like a new child, most state courts will allow parents to request a modification, or change, to the child support amount.
Presumption of Paternity
It’s not unusual for divorced parents to move on and create new families after a divorce, but that doesn’t alleviate either parent’s obligation to support all their children.
The first step in your case is to determine whether your ex-husband is legally obligated to support his new child. In most states, there is a presumption of paternity—meaning, when a married couple has a child during their marriage, the court assumes that both parents are biological parents.
If your ex is the legal father, by biology or adoption, of a new dependent, the court may reduce the amount of child support you receive. The court’s reasoning in changing child support for additional dependents is that parents must financially support all their children, even if that means each child gets a little less money from a parent. However, it's important to note that this will depend on state law and the circumstance of your case.
In some states, courts will consider a new child as a possible reason to reduce the amount of support a parent must pay to children from a previous relationship. In other jurisdictions, courts will not allow a reduction based on an additional dependent, so you will have to check the laws in your state.
Change in Circumstances
If either parent wants to change court-ordered child support, that parent must file a formal request with the court. Most states allow for a review of child support if the filing parent can prove that, since the last order, there’s been a change in circumstances. Although each state has different laws on what constitutes a “change in circumstances,” in many states, a new baby is enough to support the request for a review.
If the request is based on an additional dependent, the filing parent must wait until the child is born. So, if your ex files a motion to reduce your child support before his wife gives birth, the court will tell him that he filed too soon, and he’ll need to refile after the baby is born.
Although a new child is usually enough to warrant a review, it won't always result in reduced child support. For example, in Michigan, the paying parent must demonstrate that the new calculation will result in at least a 10% or $50 difference per month from the old award. If the new calculation doesn’t increase or decrease support by at least that much, the numbers won’t change.
Each state has specific standards, so it’s important to understand yours by checking your state's laws or consulting with an experienced family law attorney before you file.
What Happens When the Court Reviews Child Support?
If a parent files a motion to modify child support, the court will typically ask both parents to submit information showing their current:
- income
- expenses
- assets and debts, and
- custody schedule(s).
Judges use this information to recalculate child support with the state’s official formula or child support guidelines.
A child support review is a good time for you to provide evidence of any changes in income you may have experienced since the last order was issued. If there’s a question about why either parent’s income changed, the court will ask questions and decide whether the reasoning is valid.
Sometimes parents quit jobs or find lower paying jobs, so they don’t have to pay as much child support. The court doesn’t allow this type of voluntary reduction in income, so if the judge believes either parent purposely reduced their income, the court will “impute” income, meaning the court will calculate child support using an income that the parent should be earning. It’s critical to be honest about your income, assets, and dependents when the court reviews your child support.
No Backdating Child Support
Regardless of where you live, the chances are that your family court has hundreds of cases just like yours. Courts don't have the resources to monitor child support cases and check in with each family. If parents need to modify child support, at least one party must ask the court to act. Otherwise, the change will not be reflected in an order.
If your ex doesn’t file a motion after his new baby is born, the child support award will remain the same and will only change if he submits a formal request with the court.
Family court dockets are usually long and filled with cases just like yours. It could take months to adjust your child support calculation, and the court understands this. While you wait, your ex-husband must continue to pay court-ordered support. If there is an adjustment to your court-ordered support amount, the court will apply it back only to the date that your ex filed his motion for modification.
If you have questions, consider speaking to a local family law attorney for more specific advice.