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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