Can The Changed Circumstances Rule in Child Support Be Suspended by Agreement?

Child support in California can be very complicated and the changed circumstances rule is one of the reasons why. The changed circumstances rule requires a court to deny a request to modify child support if the court determines that there was no material change in circumstances since the time the last child support order was made.

First, let’s go over some basics. California, like every other state, is required to have a Guideline formula to determine what the proper amount of support should be. The Court is required to follow the Guideline, absent a few very narrowly construed exceptions (See Family Code section 4059). If a child support order is determined to be “above Guideline,” i.e. more than what the formula would provide, that child support order cannot be subsequently changed unless there has been a material change of circumstances. However, if a child support order is determined to be “below guideline,” no change of circumstances is required to increase that order to a Guideline order.

What if the parties agree that the current amount of child support is above Guideline, but further agree that there would not need to be a showing of changed circumstances to change the child support order? This was the question in the Cohen case that was just issued by the Court of Appeals on October 3, 2016.

In Cohen, the Court ruled that even if the parties attempt to contract around the changed circumstances rule, the judge cannot give any effect to the agreement. In Cohen, the parties agreed that the changed circumstances rule would not apply to the next modification proceeding. The trial court held that it would be improper for the parties to make such an agreement and the Court of appeals agreed. Essentially, the Court of Appeals held that the rules concerning the finality of orders and judgments were too important to be rewritten by the parties.

This opinion has been criticized by many family law practitioners in California. Such agreements, they argue, facilitate settlement. In particular, it is odd that in child custody, the parties have been able to contract around the change circumstances rule for some time. It would have been helpful if the Court of Appeal addressed why the changed circumstances rule could be avoided in custody cases, but not in child support cases. I suspect the Court of Appeal was attempting to ensure children receive an adequate amount of child support and avoid unnecessary modification hearings which would otherwise clog up an already very busy court system.

Child support can be a very complicated area of the law and it behooves all litigants to have experienced and knowledgeable counsel by his or her side.

Please contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding child support. Nancy J. Bickford is the only Certified Family Law Specialist (CFLS) in San Diego County who is also a licensed Certified Public Accountant (CPA) with a Master of Business Administration (MBA). Don’t settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.

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