Modification of Child Support
La. R.S. 9:311 allows for either payor or payee to modify child support. Generally it is not suggested to do so unless there is a 25% increase or decrease that will result. Here are the procedural steps of how to modify child support, along with some practical tips.
First and most important is generally the court will back-date child support to the date the petition/motion to modify is filed. Please continue to pay if a modification is filed!!!! Regarding the backdating of child support, Louisiana law generally allows for the modification of child support retroactively to the date of filing the motion to modify. However, the court has discretion to decide whether to apply the modification retroactively based on the specific facts and circumstances of the case. In some cases, the court may choose to modify child support retroactively to the date of a significant change in circumstances, such as the date the father's income increased/decreased, rather than the date the motion was filed. It is important to consult with an attorney to understand how the law may apply to your specific situation.
Filing the Petition: You or your attorney will need to file a motion to modify the child support order with the court that issued the original order. The time it takes to prepare and file the petition will vary depending on the complexity of your case and the workload of the court. Generally, it can take a few days to a few weeks to prepare and file the petition. Remember once a child support case is with the state and has a LASIS number, it stays there. You can hire a private attorney (on either side- if you're payor or payee) but the state attorneys (for payees) are free!
From the Clerk's office to the Judge: Once the petition is filed, the clerk of court will process the petition and assign it to a judge or send it to the right judge. The time it takes for the clerk to process the petition will vary depending on the workload of the court. Generally, it can take a few days to a few weeks for the clerk to process the petition and assign it to a judge.
Set Rule Date + Service of Proces: After the petition/motion is returns from the Judge's office to the Clerk of Court, it will have a court date. Now the defendant (the parent who did not file the motion to modify) must be served with a copy of the petition and a summons to appear in court. Service by the sheriff is required for individuals living in Louisiana, but service by certified mail is available for long arm service, meaning persons living in another state. The time it takes to serve the defendant will depend on the availability of the sheriff and the method of service. Generally, it can take a few days to a few weeks to serve the defendant. Sometimes a defendant cannot be found. The defendant MUST be served for the parent who filed the modification to have time in court.
Wait at least 21 Days then Go to Court: Once the defendant is served, he has 21 days to file a written response to the petition. If he does not file a response within 21 days, you may be able to obtain a default judgment in your favor. If the defendant does file a response, the court will schedule a hearing to consider the issues in the case. We don't see default judgments often (that implies not needing to go to court)...usually the filing spouse must wait for the court date and a decision will be made in court using feedback from the filing spouse, often including swearing them in under oath.
Court Hearing: The time it takes to schedule a hearing will vary depending on the court's calendar and the complexity of the issues involved. Generally, it can take a few weeks to several months to get to the hearing after the original petition/motion is filed. Be prepared with W2s, 1099s, 1040s, and any/all other income data for yourself and your child's other parent. If you're struggling to prove income, be sure to bring proof of the child's other parent's expenses. If you have access to their banking records, venmo purchases, etc., this is great. However, "he bought a car," or "she bought a house," is usually not enough- consider regular expenses showing living above means, such as the spouse attending lavish spa days, picking up the tab at expensive restaurants, undeniably paying a car note or a mortgage note without the help of a parent or new spouse, etc., to prove expenses.
Court Order: Generally, child support issues are heard by a hearing officer who has great experience in these cases. The hearing officer passes along their "recommendation" to the Judge who has the authority to sign that recommendation into order of the court. Sometimes, if there is a hearing with the Judge, the judge will issue a final order on the modification of child support directly. The time it takes to receive a final order will depend on the judge's workload and the complexity of the issues involved. Generally, it can take a few weeks to several months to receive a final order if there were contested issues and you had to go to trial. When it's hearing officer recommended, the only delay is how backed up the Judge's office is to sign the final order; if it's judge order, once they issue written Judgement, please contact your attorney regarding appealing it if needed.
Reminder re Retroactivity: Regarding the retroactivity of child support modification, as I mentioned earlier, Louisiana law generally allows for the modification of child support retroactively to the date of filing the motion to modify. However, the court has discretion to decide whether to apply the modification retroactively based on the specific facts and circumstances of the case.
Material Change of Circumstances: In case it wasn't clear earlier when I mentioned the general 25% change rule, there MUST be a modification in circumstances before it's worth the court's time to hear a modification of child support. So be prepared to prove the modification in circumstances so you have the opportunity to prove the modification of the child support itself.