Family Law Flashcards
Summary
Under federal law and the Uniform Interstate Family Support Act (UIFSA), which states are required by federal law to have adopted, State B is required to enforce the State A child support
order. Under the facts here, the courts of State B have no jurisdiction to modify the State A child support order.
Without regard to jurisdictional limitations, a court will reduce a child support award when there has been a material and substantial change in circumstances; however, such a change in circumstances has not been demonstrated here. Further, a court cannot order a retroactive modification of a child support order.
Without regard to jurisdictional limitations, an award of spousal support is modifiable only when there has been a substantial change in circumstances. Here it is unlikely that the court would
extend the time period that the father has to pay the mother spousal support. While it is debatable under the facts whether the court would increase the amount during the remainder of the five-year period, it would likely do so.
Is State B required to enforce the State A child support order?
State B is required to enforce the child support order of State A.
Rule and Application
Under federal law, states are required to give full faith and credit to child support awards from other states. Under 28 U.S.C. § 1738B(a) each state “(1) shall enforce according to its terms a child support order made consistently with this section by a court of another State.” Section 1738B is known as the Full Faith and Credit for Child Support Orders Act. Additionally, section IV-D of the Social Security Act also requires a state, as a condition of participation in the federally funded child support programs, to have procedures that require that “any payment or installment of support under any child support order . . . [be] . . . entitled as a judgment to full faith and credit in such State and in any other State.” 42 U.S.C. § 666(a)(9).
Every state has chosen to have these procedures. Hence, the father cannot evade the State A child support order by moving to State B. State B must recognize and enforce the State A order. The same result is mandated by the Uniform Interstate Family Support Act (UIFSA), legislation that states are required to adopt under federal law. Section IV-D of the Social Security Act requires that a state, as a condition of participation in the federally funded child support
programs, have UIFSA in effect. 42 U.S.C. § 666(f). UIFSA provides a simple procedure for the registration of the child support order of another state. The order is then enforced in the same manner as an order issued by the registering state. UIFSA § 603. The mother can use UIFSA to enforce the State A order in State B.
Does the State B court have jurisdiction to modify the father’s child support obligation?
State B does not have jurisdiction to modify the State A child support order.
Rule and Application
State B does not have jurisdiction to modify the State A child support order. Under federal law, each state “shall not seek or make a modification of . . . [a child support] order except in accordance with subsection [] (e).” 28 U.S.C. § 1738B(a) (Full Faith and Credit for Child
Support Orders Act). Subsection (e) of the Full Faith and Credit for Child Support Orders Act prohibits the modification of child support orders issued by a court with continuing exclusive jurisdiction, unless no contestant or child resides there, or unless each contestant has agreed in writing to allow another state to assert jurisdiction. Here a State A court issued the original child support order, and the mother and children still live in State A, so its courts have continuing
exclusive jurisdiction. Further, there are no facts indicating that the mother has given written consent to allow State B to assert jurisdiction over the father’s child support obligation. [NOTE:
The fact that the mother asked a State B court to enforce the State A order does not indicate her consent to a State B court’s jurisdiction to modify the State A order.] The same result is mandated by UIFSA. Section 205 of UIFSA confers continuing, exclusive jurisdiction on the state issuing the child support order unless no litigant or child resides there, or unless each party has consented to another state’s modification jurisdiction. State A continues to have jurisdiction, and State B cannot modify. Section 603(c) of UIFSA requires that states
enforce without modification the child support orders of other states.
Without regard to jurisdictional issues, how should a court rule on the father’s requests to reduce his child support obligation and to make the reduction retroactive?
A court will reduce a child support award when there has been a continuing and substantial change in circumstances; however, such a change in circumstances has not been demonstrated here. Further, a court cannot order a retroactive modification of a child support order.
[NOTE: Some states use the term “material” rather than “substantial.”]
Rule and Application
In most jurisdictions, modifications of child support orders may be made only upon a showing of a substantial and continuing change in circumstances making the prior order unreasonable. The burden on the party requesting the modification is a heavy one. See, e.g., Brown v. Brown, 19 S.W.3d 717, 724 (Mo. Ct. App. 2000). Under the especially strict Model Marriage and Divorce Act (MMDA) (formerly the “Uniform Marriage and Divorce Act”), applicable in only a few
states, modification of a child support order is allowed “only upon a showing of changed circumstances so substantial and continuing as to make the terms unconscionable.” MMDA § 316(a). Under any modification standard, however, the changes must be expected to be continuing rather than temporary. See, e.g., Tisdale v. Tisdale, 264 So. 3d 1105, 1109 (Fla. Dist. Ct. App. 2019). Although the father has been unemployed for three months, he did receive $75,000 in severance pay. Because his employment income has been replaced by his severance pay, he cannot show that there has been a substantial change in circumstances that would justify a reduction in his child support obligation at this time. Further, it is likely that his unemployment will be only temporary, bolstering the conclusion that it is unlikely that his child support payment will be
reduced at this time. As to the father’s request for retroactive modification, a modification of child support cannot be
made retroactive to a date earlier than the date the party files and gives notice of a petition to modify. See 42 U.S.C. § 666(a)(9). Here, if the court modified the child support obligation, the modification could be made retroactive only to the date of service on the mother. Therefore, the father will owe the full amount of the child support arrearage.
Without regard to jurisdictional issues, how should a court rule on the mother’s request for an increase in and extension of the spousal support obligation?
A court will likely modify the spousal support award because there has been a substantial change in the mother’s circumstances. It is debatable, however, whether the court would extend the period for receiving maintenance.
Rule and Application
Modification of spousal support is allowed only upon a showing of a substantial and continuing change in circumstances making the prior order unreasonable. Under the MMDA, as with a modification of child support, a modification of spousal support is allowed “only upon a showing of changed circumstances so substantial and continuing as to make the terms unconscionable.” Model Marriage and Div. Act § 316(a). Most jurisdictions are not as stringent as the MMDA, but do place a heavy burden on the party requesting the modification (e.g., requiring a “substantial change in circumstances that rendered the original award unreasonable and unfair.” Hecker v.
Hecker, 568 N.W.2d 705, 707 (Minn. 1997)). Courts consider whether the change in circumstances was anticipated at the time the original award was made and the good faith of the party asking for the modification. See, e.g., Pope v. Pope, 559 N.W.2d 192, 195–96 (Neb. 1997); Fanizzi v. Delforte-Fanizzi, 84 N.Y.S.3d 650 (N.Y. App. Div. 2018). A change in the payor’s ability to pay or in the recipient’s needs would be the type of situation in which a court would consider modification. The mother now has increased need because her
income has been substantially reduced. Her loss of income was unanticipated and may be permanent. Since her workload includes being the custodial parent of the parties’ two children, it seems very reasonable that she would follow her doctor’s orders not to resume full-time work. There is no indication of bad faith on her part. The mother presents a sympathetic case for an extension and an upward modification of her maintenance award. However, the father’s
circumstances have also changed. See Point Three. It is highly likely that the mother will succeed in having her award increased. Her income has been substantially reduced, and there has been no reduction in her expenses. Because her original award was for five years, she will be receiving maintenance for four more years under the original award. However, it is debatable whether the court would extend the period for receiving maintenance. The mother’s age, her work experience, and the duration of the marriage were factors that would have been considered in making the original award and would have tended not to support an award of long-term maintenance because she has been employed, she is not near retirement age,
and the couple was married for only 12 years. The mother has presented no evidence that she will be unable to resume work at some point within four years at the same level as previously.
