Can the court base its child support order on what I am able to earn, as opposed to what I'm actually earning?

In most states, the judge can examine a parent's ability to earn as well as what the parent is actually earning. The judge may order higher child support if there is a discrepancy. Actual earnings are an important factor in determining a person's ability to earn, but they are not conclusive where there is evidence that a person could earn more, if he or she chose to do so.

For example, assume a parent with an obligation to pay child support does one of the following:

• leaves a current job and enrolls in medical or law school
• takes a job with lower pay but good potential for higher pay in the future, or
• takes a lower-paying job that provides better job satisfaction.

In each of these situations, a court may base the child support award on the income from the original job (ability to earn) rather than on the new income level (ability to pay). The basis for this decision would be that the children's current needs take priority over the parent's career plans and desires.

On the other hand, several courts have ruled that a parent's imprisonment entitles the parent to a reduction or suspension of child support where there is no showing that the imprisonment resulted from an attempt to avoid paying the support.

I think our existing child support order is unfair. How can I change it?

You and your child's other parent may agree to modify the child support terms, but even an agreed-upon modification for child support must be approved by a judge to be legally enforceable.

If you and your ex can't agree on a change, you must request the court to hold a hearing in which each of you can argue the pros and cons of the proposed modification. As a general rule, the court will not modify an existing order unless the parent proposing the modification can show a change of circumstances. This rule helps prevent the court from becoming overburdened with frequent and repetitive modification requests.

Depending on the circumstances, a modification may be temporary or permanent. Examples of the types of changes that frequently support temporary modification orders are:

• a child's medical emergency
• the payer's temporary inability to pay (for instance, because of illness or an additional financial burden such as a medical emergency or job loss), or
• temporary economic or medical hardship on the part of the recipient parent.

A permanent modification may be awarded under one of the following circumstances:

• either parent receives additional income from remarriage
• job change of either parent
• cost of living increase
• disability of either parent, or
• needs of the child.

A permanent modification of a child support order will remain in effect until support is no longer required.

What is a cost of living adjustment (COLA) clause?

A COLA clause in a child support order means that payments are to increase annually at a rate equal to the annual cost of living increase, as determined by an economic indicator (such as the Consumer Price Index). Some judges include COLAs in their orders when setting child support. This eliminates the need for any modification requests based solely on cost of living increases.