Q & A: Increase in Child Support

A client agreed in a divorce decree that she would not ever ask for a child support adjustment. The decree says that ‘if she does, any increase will be returned to the husband as an additional property settlement.’ The client now wishes to as for an increase in child support. Is there any authority for voiding such a clause or being granted a modification despite this clause in the decree?

Generally, this type of clause should be void per public policy. Here, the key is whether there was any financial consideration for the agreement and how the agreement was phrased. Depending on whether the agreement was done correctly or done poorly, the client may or may not have a claim for increasing child support.

Minnesota Statute 518A.39 governs the modification of orders and decrees. Subdivision 2 outlines the terms for modification of a child support order. Paragraph (a) states that the terms of an order respecting maintenance or support can be modified upon a showing of one or more factors, any of which makes the terms unreasonable or unfair. Some of these factors include a substantially increased or decreased gross income of an obligor or oblige, substantially increased or decreased need of an obligor or oblige or children that are the subject of the proceedings, a change in cost of living for either party, and several other factors listed in the statute.

Paragraph (b) states that a substantial change in circumstances can be presumed under Paragraph (a) and the terms of the current support order shall be rebuttably presumed to be unreasonable and unfair if several circumstances arise. Some of these circumstances include the application of the child support guidelines in 518A.35 to the current circumstances of the parties resulting in a calculated order that is at least 20% and $75 higher or lower per month than the current support order, health coverage ordered under 518A.41 not being made available to the child for whom the order is established by the parent to provide, the existing support obligation being in the form of a statement of percentage and not a specific dollar amount, the gross income of an obligor or obligee decreasing by at least 20% through no fault or choice of either party, among other factors listed in the statute.

In practice, it would be worth pursuing the client’s claim for increased child support despite the phrase in the divorce decree if the obligee or obligor’s situation fits any of the circumstances outlined in Minnesota Statute 518A.39 that would allow for modification of the child support amount.

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