As most divorced or divorcing parents in Utah know, Utah follows a strict child support guideline that is calculated according to gross income and the number of overnights that each parent has the child or children in a year. Utah Code 78B-12-301 gives the amount of child support that is paid per the number of children in the family. It is important to realize that the figure is the COMBINED child support of both parents and that each parent will only be obligated for a percentage of that amount. If you have both parties income information and the number of overnights each parent has the child/ren, using a child support calculator is the best way to make an accurate estimate of child support.
What many people do not realize is that Utah Code contains a very important provision for both parents paying child support and parents receiving child support. In 2008 and 2009, parents who were getting FIRST TIME orders for final child support were subject to a higher child support table than those who had received child support orders PRIOR to January 1, 2008. However, parties who had final child support orders PRIOR to January 1, 2008 were not at risk of being subject to the higher child support guidelines. But, the big news is that, as of January 1, 2010, final orders for child support that were put in place any time PRIOR to January 1, 2008 are subject to the higher child support guidelines if the parent getting child support files a request for modification with the court and meets the appropriate standards, which will be described below.
Utah Code Annotated 78B-12-301 subsection (2)(d) states as follows:
(2) The table [of increased child support obligation] in this Subsection (2) shall be used to: (d) modify a final child support order entered on or before December 31, 2007, if the modification is made on or after January 1, 2010.
Before all of you parents who are child support payers get too upset and before the receiving parents breathe a big sigh of relief, both parties need to realize that the legislature makes it clear that the mere existence of new guidelines does not automatically allow an increase in child support in all cases. First, the party who believes that he or she is entitled to more child support must Petition the court for modification of the child support. Second, that party must have good reason to believe that he or she meets the following requirements and must be able to articulate that the requirements are met when filing with the court:
NOTE: These requirements are fairly complicated and you are strongly advised to get the advice of a lawyer in interpreting the statute and determining if you may qualify for modification prior to filing in court.
(8) (a) If a child support order has not been issued or modified within the previous three years, a parent, legal guardian, or the office may move the court to adjust the amount of a child support order.
(b) Upon receiving a motion under Subsection (8)(a), the court shall, taking into account the best interests of the child:
(i) determine whether there is a difference between the payor’s ordered support amount and the payor’s support amount that would be required under the guidelines; and
(ii) if there is a difference as described in Subsection (8)(b)(i), adjust the payor’s ordered support amount to the payor’s support amount provided in the guidelines if:
(A) the difference is 10% or more;
(B) the difference is not of a temporary nature; and
(C) the order adjusting the payor’s ordered support amount does not deviate from the guidelines.
(c) A showing of a substantial change in circumstances is not necessary for an adjustment under this Subsection (8).
(9) (a) A parent, legal guardian, or the office may at any time petition the court to adjust the amount of a child support order if there has been a substantial change in circumstances. A change in the base combined child support obligation table set forth in Section 78B-12-301 is not a substantial change in circumstances for the purposes of this Subsection (9).
(b) For purposes of this Subsection (9), a substantial change in circumstances may include:
(i) material changes in custody;
(ii) material changes in the relative wealth or assets of the parties;
(iii) material changes of 30% or more in the income of a parent;
(iv) material changes in the employment potential and ability of a parent to earn;
(v) material changes in the medical needs of the child; or
(vi) material changes in the legal responsibilities of either parent for the support of others.
(c) Upon receiving a petition under Subsection (9)(a), the court shall, taking into account the best interests of the child:
(i) determine whether a substantial change has occurred;
(ii) if a substantial change has occurred, determine whether the change results in a difference of 15% or more between the payor’s ordered support amount and the payor’s support amount that would be required under the guidelines; and
(iii) adjust the payor’s ordered support amount to that which is provided for in the guidelines if:
(A) there is a difference of 15% or more; and
(B) the difference is not of a temporary nature.