Given the economic impacts of COVID-19 and the increased likelihood of changes in employment, child support modification has become a prevalent topic among parents. One of the more frequent questions is whether child support can be retroactively modified due to an unexpected change in employment. Put another away, can parents receive credit going back to the actual date there was a change in income even if they wait to seek a modification. The short answer is: no. The retroactive modification of child support is not allowed in Michigan, but there is one very limited allowance. A parent can receive retroactive modification of a support payment for a period during which there is a pending motion after notice of the motion was provided to the other parent. As explained in more detail below, a parent must proceed with haste if they intend to seek child support modification following a change in employment due to COVID-19.
The courts in Michigan have the authority to modify a child support order or judgment “as the circumstances of the parents and the benefit of the children require.” MCL 552.17(1). The parent seeking a modification will carry the burden of proving that a modification is warranted based on a change in circumstances since entry of the last child support order. Aussie v Aussie, 182 Mich App 4545, 452 NW2d 859 (1990). There is currently no established rule or definition of what constitutes a change in circumstances, so a change in circumstances is an inherently fact specific concept that is unique to each situation. With that in mind, a change in employment and an involuntary decrease in income are important considerations and have been held warrant modification. Olson v Olson, 189 Mich App 620, 473 NW2d 772 (1991). An unexpected change in employment due to the impacts of COVID-19 is a good reason to seek a modification.
As stated above, the modification of child support can only be effectuated, or back-dated, to the date a parent files a motion seeking modification. This concept is contained in statute and case law. MCL 552.603(2) specifically states that a support order is not subject to retroactive modification after the date of entry, but it goes on to state that:
“[r]etroactive modification of a support payment due under a support order is permissible with respect to a period during which there is a pending petition for modification, but only from the date that notice of the petition was given to the payer or recipient of support.”
What this means is that a parent should file a motion as soon as possible after an involuntary reduction in income because the obligation to pay at the current rate of support will continue without retroactive credit until a motion is pending and notice is given to the other parent. If a parent fails to file a motion seeking modification, there is a potential for a large amount of arrearages to build up, regardless of the parent’s ability to pay during that period.
If you have questions about child support modification, please contact Jason Siffert via our office number or email [email protected].