Ask A Lawyer Question:
Regarding Indiana Child Support, Code § 31-16-8-1 regulation states that a modification can be made to child support upon showing (among other things) "(2)(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."
When computing this threshold, should one take 20% of the previously ordered amount or 20% of the newly computed amount based on the current circumstances. Believe it or not, in my case, it makes a difference.
Ask A Lawyer Answer:
I will preface my answer with the fact that while I am licensed to practice law in the State of Indiana, this response does not constitute an attorney client relationship and is being made only on the information you have supplied to me. For a better analysis of your legal issues, I would encourage you to schedule a consultation with a divorce attorney.
You have inquired about child support modification requirements stated under Indiana law. The 20% deviation you reference in the modification statute requires both, (1). at least twelve (12) months have passed since the date of the last child support modification, and (2). that when calculating a recommended child support obligation based on current figures, if a payor is either overpaying or underpaying by more than 20%, then he or she is entitled to a modification upon the appropriate presentation of evidence.
For example, if your current child support obligation is $100.00 per week, to be entitled to a modification (absent a substantial and continuing change in circumstances), you would have to show that at least 12 months has passed since the date of the last modification, and that your recommended support obligation is less than $80.00 per week. If the worksheets show that your recommended support obligation was, say $90.00 per week, you would not be entitled to a modification.
To schedule an appointment with a divorce attorney, including Jason Hopper, an Assistant Litigation Manager in the Noblesville, Indiana office, please contact Cordell & Cordell.
However, you also state "if the a payor is either overpaying or underpaying by more than 20%, then he or she is entitled to a modification". That statement leads me to believe that the 20% threshold is computed with respect to the NEWLY computed child support obligation. This is a subtle but it can make a difference.
For example, suppose I currently pay $100 weekly but the newly recommended support amount is $80. Then I would think that I would be entitled to change the modification if the amount I am currently paying is greater than $96 (80 + 20% x 80) or less than $64 (80 - 20% x 80).
I realize that this is a subtle/technical detail, but it can make a difference. Have the courts ever published clarification on this?