Tennessee Child Support Modification Law | How to Modify Child Support


Tennessee child support modification law. To change Tennessee child support, a parent must prove a 15% change in the amount of the existing support order and maybe other requirements.

How to Modify Child Support in Tennessee Law

For Tennessee child support modfication, child support cannot be modified unless the person seeking to modify the monthly amount owed can prove there has been a significant variance. The Child Support Guidelines have very specific provisions defining a significant variance. The Court of Appeals issues legal interpretations of law, but there have been only a handful of decisions about child support modification since the adoption of the Income Shares Model. So the best source of law regarding modification of child support is the Child Support Guidelines. Section .05 discusses modification. A complete set of the Guidelines is available. Always check the current version of the Guidelines. This summary was written in January 2012, and important changes in the law could have occurred since this was written. Know that ARP stands for alternative residential parent, and PRP means Primary Residential Parent.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. Know that the “steps” described below are not contained within the Guidelines, but are offered here to help navigate through the rules.

Step One in Tennessee Child Support Modification

The first step is obtaining income information from the other parent. Most current parenting plans have explicit provisions for the exchange of financial information. Read your parenting plan. Ask the other parent for the information the parenting plan requires be exchanged between you and the other parent. W-2′s are issued by most employers by January 31 of each year. But you may also want to see the rest of the tax return. If your parenting plan does not require the exchange of information, you may still request it. If you are working with an attorney, discuss your options for obtaining income information early in the process.

Tennessee Child Support Modfication Law Video


Modifying Child Support Under Tennessee Guidelines

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How to Modify Tennessee Child Support

How to Modify Tennessee Child Support

If you don’t have the other parent’s income information for whatever reason, you can still go through the analysis, guessing about the other parent’s income. If there may be a significant variance, you may then choose to request the income information, or you may file a motion or petition to change child support and ask the court to compel the 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 FAQ’s on this web site. There are discussions about a number of different situations, including imputing income, assigning income to those 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 child support purposes.

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Step Two 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 enjoy, and child care and health insurance costs for the children, you will need to calculate the new prospective child support amount utilizing the child support worksheets and compare that amount to the current amount. The new prospective amount should be compared 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. But if the current child support order was established or modified before January 18, 2005, 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:

  1. At least a fifteen percent (15%) change in the gross income of the ARP; and/or
  2. A change in the number of children for whom the ARP is legally responsible and actually supporting; and/or
  3. A child supported by this order becoming disabled; and/or
  4. 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
  5. 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, which is discussed below.

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Step Three in Changing Tennessee Child Support

The third step is to determine if the child’s health care needs provide an exception allowing for modification.

(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 the child support will result in a significant variance, if there is an issue with a child’s health care needs requiring additional support, the courts will consider the modification. The difficult situation arises when the health care situation also affects educational needs, which may not be grounds for a modification. For example, is a child’s ADHD diagnosis requiring medication a health care need or educational need? The ADHD medication sounds like a medical condition. But counseling with an educational expert may not qualify because it is educational. Often, the only person who knows the answer may be the trial judge hearing the evidence.

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Step Four How to Modify Child Support in Tennessee

The fourth step requires ruling out whether or not the person seeking a modification of child support is a low-income provider. If so, different rules apply. For purposes of modification of orders, a low-income provider is a person who:

  1. Is not willfully and voluntarily unemployed or underemployed when working at his/her full capacity according to his/her education and experience; and
  2. 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).
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Step Five in Tennessee Child Support Modification

The fifth step requires ignoring previously ordered deviations. Deviations in child support relate to specific situations in which the presumed amount owed is adjusted either upward or downward based on 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).

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Step Six Tennessee Child Support Modification Law

The sixth step acts as a bar to modification. If a child support obligor, or ARP, is intentionally behind on child support, the court has the authority to deny a modification of child support that otherwise could be modified. But just because an obligor is behind, also described as “in arrears,” that is not grounds for a denial of modification. The non-payment must be intentional. For the exact provision, see Rule 1240-2-4-.05(4).

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Step Seven in Tennessee Child Support Modification

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, there still must be compliance with the significant variance requirement described above. For the exact provision, see Rule 1240-2-4-.05(6).

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Step Eight How to Modify Child Support

The eighth step only applies to split parenting when both parents have 50/50 parenting time. It reads:

(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).

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Step Nine in Tennessee Child Support Modification Law

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).

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Step Ten How to Modify Child Support in Tennessee

Modifying Tennessee Child Support

Modifying Tennessee Child Support

The tenth step deals with what is called a “hardship” exception. This allows courts to prevent a modification of child support that drastically reduces the amount of support just because of the application of the new Income Shares Method. In general, courts will be reluctant to apply this exception unless there is strict compliance with the rules cited below and the trial judge really thinks the reduction in support provides a very real hardship. The reason why the provision is so strict and specific is that every reduction in support could arguably create a hardship. The rule reads as follows:

(h) Hardship Provisions Due to Modification of Order.

1. Any time following the effective date of these Rules when a tribunal is considering modification of an order initially established under Tennessee’s Flat Percentage Guidelines, and the tribunal finds a significant variance between the amount of the existing child support order and the amount of the proposed child support order calculated under this chapter, which change results from the application of the guidelines rather than from the change in the income and/or circumstances of the parties, then the tribunal may modify the current child support order up to the full amount of the variance or may apply a hardship deviation as described below in parts 2-4.

2. For orders being modified as described in part 1 immediately above, the tribunal may deviate from the amount of child support required by the Income Shares Model and limit the amount of the upward or downward modification if:

(i) A deviation is supported in writing in the order by the criteria in 1240-2-4-.07(1); and

(ii) The tribunal finds that the change in the amount of child support caused by the transition to Income Shares will create a hardship either to:

(I) The recipient of the support who will have a substantial decrease of previously ordered support; or

(II) The payor who will have a substantial increase of previously ordered support.

3. It is not the intent or purpose of these guidelines to reduce the lifestyle the child(ren) enjoyed under the previous guidelines merely by the application of the income shares guidelines. Rather, the intent is to appropriately allocate the financial responsibilities of the parties with regard to the child(ren) while considering the status quo of the parties. Accordingly, the tribunal shall consider the following factors in determining whether a hardship will be created by the application of the income shares guidelines:

(i) Whether the significant variance is created solely by the application of the income shares guidelines or whether it also includes a significant change in the income of either or both of the parents

(ii) Whether the parent has incurred fixed expenses based on the amount of support previously ordered, including but not limited to mortgage payments, automobile payments, and other long-term financial obligations;

(iii) The standard of living the child(ren) enjoyed as a result of receiving the current level of support. In making this determination the tribunal shall consider the amount actually incurred by the PRP for basic expenses comparing the actual basic expenses incurred with the BCSO set forth by the guidelines. If the tribunal finds that the actual amount incurred for basic expenses exceeds the presumed BCSO and that the actual amount incurred is reasonable considering the relative incomes of the parents the tribunal may use the actual expenses as the BCSO.

(iv) If the child(ren) incurred Extraordinary Educational Expenses or Special Expenses that were previously included in the support amount determined under the prior guidelines, the tribunal may consider those expenses if the application of the guidelines does not adequately take said expenses into account. The tribunal may also make an equitable division of these expenses so as to maintain the status quo with regard to the financial obligations of each party.

(v) If the current order for support includes provisions for allocating the cost of medical and / or dental insurance and uninsured medical expenses, the tribunal may compare the allocation of said expenses under the application of the guidelines with the allocation under the order.

4. The hardship deviation, if allowed, cannot be utilized in a later action to create a significant variance.

5. No modification under this hardship provision shall be made to the extent that it would seriously impair the ability of the PRP in the case under consideration to maintain minimally adequate housing, food, and clothing for the children being supported by the order and/or to provide other basic necessities, as determined by the court.” Rule 1240-2-4-.07(2)(h).

In conclusion, 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 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 a year, but the bonus related to more than one years’ performance of the employer or company, that income may arguably be allocated over the number of years to which that performance related. Or if a person owns a minority interest in a partnership and is taxed on the earnings of the company, not the amount distributed in earnings, 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 family lawyers. Child support modification is a very challenging aspect of Tennessee family law, and seeking a modification is not a step to be taken lightly.

 

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