Child Support Modification in Tennessee | How to Modify Child Support
Tennessee child support modification law: guidelines, credits, retroactive support orders, significant variance, deviations, exceptions, income documentation and forms. How to raise, lower, increase, decrease, reduce, modify or otherwise change Tennessee child support, a parent must prove a 15% change in the amount of the existing support order and maybe fulfill other requirements.
How to Modify Child Support in Tennessee Law
In Tennessee child support modification law, support cannot be modified unless the person seeking to modify the monthly amount owed can prove that there has been a significant variance. The Child Support Guidelines very specifically define what is meant by “significant variance.” Tennessee’s Court of Appeals issues legal interpretations of law and many of these cases are discussed in our Tennessee Family Law Blog’s Child Support Modification category.
What are the Guidelines for changing child support in Tennessee?
The best source of law on modifying, or changing, child support is the Child Support Guidelines themselves. Section .05 discusses modification. A complete set of the Guidelines is available to you, but be sure to always check the current version of the Guidelines. Although this page was written in 2015, do be aware that important changes in the law could have occurred in the time since then.
How can Tennessee child support be modified?
- How do I change my Tennessee child support order?
- How can I reduce my child support payments?
- How do I increase my TN child support?
- How can I change child support payments?
Below is a step-by-step analysis to determine if you or your child’s other parent can qualify for a modification of child support – that is, increasing or decreasing an existing, current child support obligation. Understand that the steps described below are not contained within the Guidelines, but are offered here to help you navigate through the Rules. Know that ARP stands for “Alternative Residential Parent” while PRP stands for “Primary Residential Parent.”
Step One: Income Information and Documentation in Tennessee Child Support Modification
The first step in Tennessee child support modification is obtaining income information from the other parent. Most current parenting plans have explicit provisions for exchanging financial information. Read your parenting plan. Ask the other parent for the information that your parenting plan requires be exchanged between the two of you. Employer-issued W-2s are usually out by January 31 of each year, but you may also want to see the rest of the other parent’s tax return. Even when your parenting plan does not require the exchange of income information, you may still request it. If you are working with an attorney, then discuss your options for obtaining income information early in the child support modification process.
When you do not have the other parent’s income information, for whatever reason, you should still go through the analysis, guessing about the other parent’s income. If there may be a significant variance, then you can choose to request the income information or, in the alternative, file a motion or petition to change child support and ask the court to compel production of the other parent’s income information as part of that legal action. You may even send a subpoena to the other parent’s employer.
To learn more about what is “gross income” for child support purposes, see Child Support FAQs on this website. You will find discussions about a number of different situations, including imputing income to a parent, assigning income to a parent without proof of income, and what may be required to prove that the other parent is voluntarily underemployed or unemployed. Know that investment income, interest and dividend income, and other non-employment income can be included in determining a parent’s gross income for purposes of calculating child support.
Step Two: Percentage Change in Raising or Lowering Child Support in Tennessee
The second step is to determine the percentage change in income and see if it qualifies as a significant variance. Based on the income of both parents, the number of parenting nights each enjoys, and the childcare and health insurance costs for the children, you will need to calculate the new prospective child support amount utilizing the child support worksheets. Then you will need to compare the new prospective amount to the current amount.
How does the new prospective amount compare with the old amount? Here is where to start:
(c) For all orders that were established or modified January 18, 2005 or after, under the income shares guidelines, a significant variance is defined as at least a fifteen percent (15%) change between the amount of the current support order (not including any deviation amount) and the amount of the proposed presumptive support order . . ..” Rule 1240-2-4-.05(2)(c).
There is also an exception for a low-income provider.(That exception is discussed below.)
Importantly, if the current child support order was established or modified before January 18, 2005, then the following provision applies:
(b) For all orders that were established or modified before January 18, 2005, under the flat percentage guidelines, and are being modified under the income shares provisions for the first time, a significant variance is defined as:
- At least a fifteen percent (15%) change in the gross income of the ARP; and/or
- A change in the number of children for whom the ARP is legally responsible and actually supporting; and/or
- A child supported by this order becoming disabled; and/or
- The parties voluntarily entering into an agreed order to modify support in compliance with these Rules, and submitting completed worksheets with the agreed order; and
- At least a fifteen percent (15%) change between the amount of the current support order and the proposed amount of the obligor parent’s pro rata share of the BCSO if the current support is one hundred dollars ($100) or greater per month and at least fifteen dollars ($15) if the current support is less than one hundred dollars ($100) per month. …” Rule 1240-2-4-.05(2)(c).
Again, there is an exception for the low-income provider (see below).
Step Three: Health Care Needs Exception in Changing Tennessee Child Support
The third step is to determine whether the child’s healthcare needs provide an exception allowing for modification of child support.
(a) … [T]he necessity of providing for the child’s health care needs shall be a basis for modification regardless of whether a modification in the amount of child support is warranted by other criteria.” Rule 1240-2-4-.05(a).
Regardless of whether or not child support will result in a significant variance, if there is an issue with a child’s healthcare needs requiring additional support, then the court will consider the modification.
A difficult situation arises when the child’s healthcare situation also affects educational needs, which may not be grounds for a modification. For example, is the child’s ADHD diagnosis requiring medication a healthcare need or an educational need? The ADHD medication sounds like a medical condition. But counseling with an educational expert may not qualify as healthcare because its purpose is educational. Often, the only person who may know the answer is the trial judge hearing the evidence.
Step Four: Low-income Provider in How to Modify Child Support in Tennessee
The fourth step requires ruling out whether the person seeking a modification of child support is or is not a low-income provider. If that parent is a low-income provider, then different rules apply. For purposes of modification of orders, a low-income provider is a person who:
- Is not willfully and voluntarily unemployed or underemployed when working at his/her full capacity according to his/her education and experience; and
- Has an Adjusted Gross Income at or below the federal poverty level for a single adult.
(i) As of the effective date of the rules, the federal poverty level for a single adult is ten thousand four hundred dollars ($10,400) annual gross income, which shall remain in effect until updated by the Department.
(ii) Updated information regarding the federal poverty standards will be available on the Department’s website at www.state.tn.us/humanserv.” Rule 1240-2-4-.05(d).
Step Five: Ignore Previous Deviations in Tennessee Child Support Modification
The fifth step in Tennessee child support modification requires ignoring previously ordered deviations. Deviations in child support relate to specific situations in which the presumed amount owed is adjusted upward or downward based upon a special circumstance. Under Tennessee child support law, all deviations must be in writing and contain specific findings by the court ordering the support. Specifically, the Guidelines say:
(3) To determine if a modification is possible, a child support order shall first be calculated on the Child Support Worksheet using current evidence of the parties’ circumstances. If the current child support order was calculated using the flat percentage guidelines, compare the existing ordered amount of current child support to the proposed amount of the ARP’s pro-rata share of the basic child support obligation. If the current child support order was calculated using the income shares guidelines, compare the presumptive child support order amounts in the current and proposed orders. Do not include the amount of any previously ordered deviations or proposed deviations in the comparison. If a significant variance exists between the two amounts, such a variance would justify the modification of a child support order unless, in situations where a downward modification is sought, the obligor is willfully and voluntarily unemployed or underemployed, or except as otherwise restricted by paragraph (5) below or 1240-2-4-.04(10) above.” Rule 1240-2-4-.05(2)(d).
The Guidelines also say this about deviations:
(5) Upon a demonstration of a significant variance, the tribunal shall increase or decrease the support order as appropriate in accordance with these Guidelines unless the significant variance only exists due to a previous decision of the tribunal to deviate from the Guidelines and the circumstances that caused the deviation have not changed. If the circumstances that resulted in the deviation have not changed, but there exist other circumstances, such as an increase or decrease in income, that would lead to a significant variance between the amount of the current order, excluding the deviation, and the amount of the proposed order, then the order may be modified.” Rule 1240-2-4-.05(5).
Step Six: Obligor Intentionally Behind When Changing the Child Support Amount Owed
The sixth step acts as a bar to modification. If a child support obligor, or ARP, is intentionally behind on child support, then the court has authority to deny a modification of child support that, otherwise, could be modified. However, just because an obligor is behind with support payments, also described as being “in arrears,” that alone is not grounds for a denial of modification. The obligor’s non-payment must be intentional. For the exact provision, see Rule 1240-2-4-.05(4).
Step Seven: Significant Variance in Child Support Reduction or Increase in Tennessee
The seventh step in modification deals with changes related to the number of children for which a parent is legally responsible, parenting time adjustments, and work-related childcare. If any of these three grounds are asserted as a basis for modification of child support, then there still must be compliance with the significant variance requirement described above. For the exact provision, see Rule 1240-2-4-.05(6).
Step Eight: 50/50 Time in How Child Support is Changed
The eighth step only applies to split parenting when both parents have 50/50 parenting time. The rule states that:
(7) Modification of Orders in Split Parenting Cases and Cases Where Parenting Time is Divided on a 50/50/Equal Basis.
(a) If an order was established or modified under the Income Shares guidelines between January 18, 2005 and April 1, 2005, in a case with split parenting or a case in which parenting time is divided on a 50/50/equal basis, the order may be modified without compliance with the significant variance requirement only for the purpose of correcting a calculation error resulting from application of the rules implemented on January 18, 2005.
(b) Any arrears which may have accumulated under any such order as originally established or modified under the Income Shares guidelines may be recalculated consistent with the amount of the child support obligation as modified pursuant to this part.” Rule 1240-2-4-.05(7).
Step Nine: Filing Petition Required for Change Prior to Modifying Tennessee Child Support
The ninth step limits modification only after “an action for modification is filed and notice of the action has been mailed to the last known address of the opposing parties.” For every month child support is due, it is a judgment and cannot be modified retroactively. It cannot be changed. For the exact provision, see Rule 1240-2-4-.05(8).
Step Ten: Hardhip Exception in How to Modify Child Support in Tennessee
The tenth step in modifying child support deals with what is called the “hardship” exception. The hardship exception allows courts to prevent a modification of child support that would drastically reduce the amount of support only because the new Income Shares Method was applied. Discuss this with your lawyer. See the Guidelines for more details and to determine whether the hardship exception might apply to your situation. In general, courts are reluctant to apply the hardship exception unless, one, there is strict compliance with the Rules and, two, the trial judge really thinks the reduction in support will cause a very real hardship. The reason why this provision is so specific and strictly applied is that every reduction in child support could arguably create a hardship.
These ten steps are just the beginning. Even though the Rules described herein are very specific and, arguably, overly stringent in some circumstances, there are legal arguments that can be made regarding a potential modification of child support. Arguments that are not covered here.
For determining gross income, there are many court decisions that deal with very specific situations. For example, if an employee received a large bonus in one particular tax year, but the bonus related to more than one years’ performance with the employer or company, then arguably that income may be allocated over the number of years to which that performance related. If a person owns a minority interest in a partnership, for instance, and is taxed on the earnings of the company and not on the amount distributed in earnings, then gross income may be the amount of distributions rather than taxable income. In other words, there are many, many situations requiring specific research and analysis – even for experienced Tennessee family lawyers. Child support modification is a very challenging aspect of Tennessee family law. Seeking a modification is not to be taken lightly.
MODIFYING TENNESSEE CHILD SUPPORT DUE TO A CREDIT
Can the Alternative Residential Parent obtain a modification in child support just because the obligor qualifies for a credit under the Tennessee Guidelines?
The Guidelines say no. You still must have a significant variance to modify child support. The Tennessee Court of Appeals explained some of the history behind modification law and the succession of changes in this area’s child support rules:
The new Guidelines defined the term “significant variance” as “(a)t least fifteen percent (15%) change in the gross income of the ARP (alternate residential parent) … ,” a change in the number of children for whom the ARP was responsible and supporting; a supported child become disabled; or the parties’ agreement to modify support and at least a 15% change between the current support order and the proposed order, using the income shares worksheet. Subsection (7) of this regulatory provision stated that, beginning January 1, 2006, the above definition of “significant variance” would be eliminated. After that, a parent seeking modification would merely have to show a 15% difference between the current support order and the proposed child support order using the income shares worksheet.
On October 14, 2005, the Tennessee Department of Human Services (“DHS”) promulgated an emergency rule, repealing subsection (7) of Rule 1240-2-4-.05, which would have changed the definition of “significant variance” to require only a showing of a 15% difference between the current and the proposed child support orders. DHS also published a “Statement of Necessity” for this emergency rule. In the Statement of Necessity, DHS noted concerns that the changes would result in significant increases or decreases in existing child support obligations based solely on the new methodology for calculating the support. DHS was also concerned that Tennessee courts would be “subject to an unusually high volume of requests for modification by parents seeking to improve their respective financial positions” by receiving a reduced child support obligation under the new income shares guidelines. To address these concerns, DHS decided to eliminate the new subsection (7) definition of “significant variance” and maintain the existing definition of the term, in order to “limit the availability of modifications. …” Hill v. Hill, No. M2006-0273-COA-R3-CV (Tenn. Ct. App., Dec. 17, 2007) (Citations omitted).
For many reasons, whether or not a parent may modify child support remains a confusing topic for judges and lawyers alike. Application of the child support guidelines to a particular situation is not easily predictable. Definitely see an experienced Tennessee family lawyer to inquire about your situation. Why? Because this complex area of Tennessee child support law may have been interpreted differently by the Tennessee Court of Appeals. Talk to your lawyer.
TENNESSEE CHILD SUPPORT MODIFICATION FORM
Is there a child support modification form in Tennessee?
Not really. There are no official, state-wide, Supreme Court of Tennessee approved forms for a parent to complete in order to request that the court review an existing, current child support order to determine if a modification is warranted. However, it is possible that some Tennessee county clerk’s office (or State of Tennessee agents for child support collection and enforcement) may have developed certain child support modification forms for use in a given locality. Consider checking your court clerk’s website or calling the court clerk’s office to find out. In general, to request that a court modify child support, a parent’s lawyer will draft a petition to modify child support alleging the necessary factual and legal requirements, will file that petition in the applicable court clerk’s office, and will then have that petition served on the other parent.