The most common way to modify and terminate support is to show that there has been a substantial change in circumstances. The person seeking modification has the burden of demonstrating that there in fact has been a substantial change of circumstances. The clauses allowing modification of maintenance and child support upon a showing of a substantial change in circumstances have been subject to various interpretations. The most common interpretation is that the substantial change in circumstances in order to modify maintenance of children's support payments must take place between the time of the entry of the dissolution of marriage judgment, or other prior support order, and the time of the filing of the petition for modification.
For an increase, case law generally holds that the substantial change in circumstances must be bilateral: both an increase in the needs of the spouse receiving maintenance or the children who are the beneficiaries of the children's support, coupled with an increase in income on the part of the payor spouse, are required. After the petitioner establishes a showing of a substantial change of circumstances, the court determines whether to modify the support award using the same factors as were used in the initial maintenance award. These include: the financial resources of the party seeking support, including the marital property apportioned; the standard of living established during the marriage; the duration of the marriage; the age and the physical end emotional condition of both parties; the ability of the spouse seeking support to meet her needs independently; and the ability of the other spouse to pay. Similarly, a petition to modify child support is determined under the same analysis as is an initial award of child support.
The factors to be considered include: (1) the financial resource of the child; (2) the financial resources and needs of the custodial parent; (3) the standard of living the child would have enjoyed had the marriage not been dissolved; (4) the physical and emotional condition of the child and his educational needs; and (5) the financial resources and needs of the non-custodial parent or parents. After considering the factors listed above, the court may deny the petition for modification, increase or extend the support or maintenance, or reduce or terminate the support or maintenance. Modification of child support illustrations (a) Change in custody. A change in custody is a substantial change in circumstances that may warrant a modification of child support. (b) Increase in the children's need for support (illness, increase in age, and increase in living expenses).
(c) Decrease in payor's ability to pay. Modification may be appropriate when the payor's ability to pay support is reduced. For example, financial reverses or a fall in the payor's income may warrant a reduction of support.
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