Family Law Flashcards
(5 cards)
Does the State A court have jurisdiction to modify the State B child support order?
Personal jurisdiction over a nonresident respondent does not confer subject-matter jurisdiction over child support modification. Under UIFSA, a State A court may not modify a child support order issued by a State B court when, as here, the child or either parent continues to reside in State B, the jurisdiction that issued the child support order.
The interstate enforcement and modification of child support is governed by the Uniform Interstate Family Support Act (UIFSA), which has been adopted by all states. Under UIFSA, the state that originally issued a child support order (here, State B) has continuing, exclusive jurisdiction to modify the order if that state remains the residence of the obligee, the child, or the obligor and all parties do not consent to the jurisdiction of another forum. See UIFSA § 205. See also UIFSA § 603 (“A tribunal of this State shall recognize and enforce, but may not modify, a registered order if the issuing tribunal had jurisdiction.”). The wife and daughter continue to reside in State B, and the wife has not consented to the jurisdiction of another forum. Thus, a State A court does not have jurisdiction to modify the State B child support order.
Does the State A court have jurisdiction to modify the marital-residence-sale proceeds provision of the State B property-division decree?
UIFSA does not apply to disputes over property division. Thus, the State A court may exercise jurisdiction over the husband’s petition to modify the marital-residence-sale-proceeds provision of the State B divorce decree because it has personal jurisdiction over the wife.
A child support order may not be modified retroactively.
State courts have long held that obligations to pay child support ordinarily may not be modified retroactively. “If the hardship is particularly severe, the courts sometimes devised a way to protect the obligor, but in most instances the courts hold that retroactive modification of this kind is beyond their power and indeed the governing statute may so provide.” HOMER H. CLARK, THE LAW OF DOMESTIC RELATIONSHIPS IN THE UNITED STATES 725 (2d ed. 1987).
Federal law now goes further and requires the states, as a condition of federal child-support funding, to adopt rules that absolutely forbid retroactive modification of the support obligation. See 42 U.S.C. § 666(a)(9)(C). The states have adopted rules consistent with the federal requirements.
Prospective modifications
Prospective modification of a child support order is typically available only when the petitioner can show a substantial change in circumstances. A significant decrease in income is typically viewed as a substantial change.
However, when a parent seeks to modify a child support obligation because he has voluntarily reduced his income, a court will not modify the obligation based solely on the income loss. Some courts refuse to modify whenever the income shift was voluntary. See, e.g., Aguiar v. Aguiar, 127 P.3d 234 (Idaho Ct. App. 2005). Others look primarily to the petitioner’s intentions and permit downward modification if he has acted in good faith. See, e.g., In re Marriage of Horn, 650 N.E.2d 1103 (Ill. App. Ct. 1995). Many courts use a multifactor approach.
Here, there is no question that the husband’s loss of income was voluntary. In a jurisdiction in which voluntary income reduction bars support modification, the husband’s petition would be denied.
In a jurisdiction employing a good-faith or multifactor approach, it is possible, but not certain, that the husband could obtain downward modification. The evidence supports the husband’s good faith: his change in employment appears to be based on his new job’s greater responsibilities and better promotion possibilities. In a jurisdiction using a multifactor approach, the court would likely also consider the impact of such a shift on the daughter, the likely duration of the husband’s income loss, and the likelihood of a promotion that would ultimately inure to the daughter’s benefit. Thus, on these facts, it is possible, but by no means certain, that the husband could prospectively obtain downward modification of his child support obligation to his daughter.
A divorce property-division award is not subject to modification.
A support order is aimed at meeting the post-divorce needs of the supported individual. Because the future is unpredictable, courts are empowered to modify a support award to take account of changed circumstances that may occur during the period in which support is paid.
By contrast, a property-distribution award divides assets of the marriage based on the equities at the time of divorce. Because the past can be ascertained, a property-division award is not subject to post-divorce modification. See HARRY A. KRAUSE ET AL., FAMILY LAW: CASES, COMMENTS, AND QUESTIONS 691 (6th ed. 2007).
Here, the husband is seeking modification of a property-division award with respect to an asset owned by the parties at the time of divorce. Thus, the husband may not obtain a modification of the marital-residence-sale-proceeds provision of the divorce decree based on his reduced income.
