Wednesday, December 14, 2011

Family Law and Divorce Do it Yourself Series Part I: How to Modify an Existing Child Support Order in California?


This post is to help you file or just simply understand what your lawyer is doing when he or she agrees to assist you in modifying your existing child support order. 



1) The first thing you usually want to do is negotiate.  If possible, it is always good to try to negotiate a stipulation or agreement outside of court to modify child support with opposing counsel or if your spouse or partner is not represented, then negotiate directly with them.  Now this may not always be possible, but if you can agree outside of court that is always better.  If you can come to an agreement, then you need to draft a Stipulation and file it with the court stating the amount you agree to.  You should include a printout of the child support calculation with the stipulation.

2)  If negotiation is not possible, then you would need to draft and file an Order to Show Cause or “OSC”.  This is the FL-300 form.  It should be good for you to use for the purpose of modifying child support. This form is pretty straight forward, just fill it out.  Make sure you check the "Modification" box at the top.  
 
3) You will have to attach an Income and Expense Declaration to the OSC which will tell the court about how much money you make and what expenses you will have.  This information combined with the opposing party’s information will be used to calculate the amount of child support that should be paid.  It’s important to have updated and complete Income and Expense declaration so the court can make a decision on fresh information.  For example, if you just lost your job or for some reason you have less income, you want the court to have the most updated information possible. 

4)  Next, you need to fill out and attach an Application for Order and Supporting Declaration.  On this form make sure you fill out the child support section.  On the Second page, you need to use the space on paragraph 10 for your declaration.  The declaration should tell the court why you are asking for the modification.  You should give the courts facts why they should modify child support.  If the space provided is not large enough attach another piece of paper.  It’s important to provide facts not just conclusions.  The legal standard in California for Modification of Child Support is a “Material Change of Circumstances.”  This means that you have to convince the court that there has been a material change between the circumstances that existed at the time the court entered the initial child support order and the circumstances presently.
 
5)  After you file the OSC and accompanying documents, you need to go the court and file the documents.  It’s important that you file the OSC at the court which entered the initial child support order.  There will be a filing fee.  Make sure you bring three copies.  One for the court, one for you and one to serve on the opposing party.  The clerk will give you a court date.   

6)  The next step is to serve the opposing party.  You can do this by Personal Service, which is where you get someone that is over 18 and not a party to your case to personally hand the documents to the opposing party.  This is the best type of service.  After you have someone serve the documents you need them to fill out a Proof of Personal Service.  This is important:  you must file the proof of service with the court before the hearing.  Otherwise, the court may not hear your case.  You may be able to serve the opposing party by mail if they are represented by counsel.  This is a simple process, you just have someone that is over 18 and not a party to your case mail the documents to the opposing party’s counsel.  This person has to fill out the Proof of Service by Mail form.   Then like the Proof of Personal Service form you have to file either with the court before the court date set up by the clerk. 

The links are to the California Judicial Council Website and all of the forms are subject to change.  Also, processes change.  Remember that each Attorney or county may have their own forms or special rules to follow.  So each party has to be familiar with the local rules of the court.  More often than not this entire process is best handled by a Family Law Attorney or a Divorce Attorney. 

If you should need any assistance with your modification of child support in the bay area please visit my website at www.lawofficeofbarrydwitt.com
I can be reached via email at barry@lawofficeofbarrydwitt.com





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