Question: When my wife and I divorced four years ago, the agreement we signed was supposed to be “non-modifiable”. We took great pains to schedule out the payments I was to make for the children so that they would increase – or decrease – each year based on our respective incomes. We did this to avoid future hassles, and the judge gave us his blessing. My lawyer told me that this was a foolproof way to keep us out of court in the future. But guess what! My wife is now suing me for more child support. Why does “non-modifiable” mean “modifiable” in divorce court?

Answer: Generally, no matter what you and your wife agreed upon, child support awards are always modifiable based upon meaningful changes of conditions since the last order was issued. And, generally speaking, where a custodial parent agrees to receive less than the amount of child support mandated by a state’s child support guidelines, that parent can petition the court for an increase in support even where the payer’s income has not increased.

Historically, because child support awards varied substantially from case to case, there have been efforts to find mathematical formulas to make these awards uniform. Although a 1984 federal law required the development of child support guidelines in each state, prior to 1990, child support guidelines were initially applied to welfare cases in order to maximize reimbursement of public money given as entitlements.

Today, based upon the premise that both parents have an equal duty to support their children, federal law requires that awards in each state be determined by the application of state-specific child support guidelines unless the Court makes a finding that the application of the guidelines would be unjust or inappropriate under criteria established by the State. Although the federal law also requires that child support awards be reviewed under the guidelines at least once every four years, most states have not carried out a meaningful review process.

If the child support formula you and your wife agreed upon meets the guideline criteria in your state, absent exigent circumstances, your agreement concerning the modification of child support may, indeed, be “non-modifiable”. As a matter of fact, if your agreement requires that guideline calculations be made each year based upon the current incomes of you and your former wife, it appears to us that your lawyers may have put you far ahead of the review efforts of any state, and you may well have a defense to your former wife’s lawsuit.

By including in agreements – or court orders – a requirement that parents adjust their child support obligations on a regular basis based on guideline criteria, parents and courts may begin to solve a serious backlog issue that plagues our judicial system today. Our hat is off to your lawyers who tried to keep you out of court.

SoloFact: While we are on the topic of modifiability of court orders, it is important to remember that unless agreed or ordered to the contrary, spousal support awards are modifiable – either upwards or downwards -- based upon a court finding evidence of substantial changes of conditions since the last order was issued. In some states, remarriage of a payer or payee can lead to modification when the court considers the income of the new spouse either directly or indirectly.

On the other hand, generally speaking, awards of property settlement, whether in equitable division or community property states, are not modifiable, and if there is dissatisfaction with an award, the decision must be appealed.