Which Would You Choose -- Mediation or Litigation - When Seeking Child Support Modification?

07/30/2013 12:10 pm ET | Updated Sep 29, 2013

Since the amount of child support one is required to contribute is formulary and based on statutory guidelines, it stands to reason then that modification of child support would be requested when there is a "substantial change of circumstance," such that your income is substantially negatively affected. This applies for both the giver and receiver of child support. So, if you are the giver and have lost your job, you can seek an adjustment to your support obligation (whether temporary or permanent) to lower the support you give to more accurately reflect your new income. The rules are the same for the receiver, namely, if circumstances have caused a decrease in your income, you may seek a similar adjustment to the support you receive (whether temporary or permanent) to increase the support you receive to more accurately reflect your new income. Sounds simple, right? Maybe. The simplicity depends upon the cooperation of the parties... the givers and the receivers... and whether they are voluntarily willing to be reasonable with each other.

How would you handle this situation? How would you address with your former spouse that you need to adjust the child support you give or receive because you've lost your job? When would you approach him/her? What would you say? How would you say it? Would you demand an immediate modification? Would you respectfully make suggestions? How would you assure that a new job ... with comparable compensation to the old one ... is being actively sought? These are just a few of the questions that arise when someone says, "I need to increase/decrease child support," and the other person feels vulnerable or at risk for being financially exposed or exploited. The method by which you choose to resolve your dispute, whether by mediation or litigation, may drive the conversation and the ultimate outcome. You can choose litigation, and expect to spend considerable sums of money over a significant period of time to resolve what might amount financially to more than the underlying dispute. Or, you can choose to mediate the issues yourselves and/or with the assistance of a certified family law mediator, and expect to arrive at a resolution that is both cost and time efficient.

Consider the following scenario:

Mom and Dad both work and contribute proportionately to child support obligations, with Dad contributing 60 percent and Mom contributing 40 percent, based on their respective incomes. Dad is suddenly laid-off from work, and calls Mom to let her know that he will be receiving unemployment, but will need to adjust the child support he gives her until he's employed. What are Mom's options? What are Dad's options?

If either parent decides to litigate, a Motion for Temporary or Permanent Modification of Child Support based on a substantial change in circumstance will likely start the process. This may be done with an attorney ($$$) or pro se ($), but will require some financial investment and time. This will likely be followed with written and/or oral discovery, such as depositions, interrogatories and requests for production of documents, such as former employers' records and tax returns. If contested, the Court may require vocational or other evaluations to demonstrate the ability to work. This will also cost $$$ and take additional time. A forensic accountant may be required to determine the adjusted child support calculations based on new incomes or imputed incomes. Again, this will cost $$$. And more time. After several months of wrangling, and thousands of dollars spent litigating, there will be some adjustment to the child support, either upwards or downwards. The question is whether the amount spent litigating exceeds the amount actually adjusted, and whether the process of litigating made sense in the long-run.

In the alternative, the parties may decide to resolve the matter themselves or with the assistance of a certified family law mediator. They will evaluate the difference in current income, considering unemployment, severance, or other potential sources of income. They will discuss the possibility of reemployment, and the amount of time it may take to identify new employment. They will set the expectations of each party by thoroughly discussing the re-employment process and providing time limitations on the financial adjustments. Most importantly, they will work together to establish guidelines for a resolution that will dissuade either party from seeking court intervention.

3 Reasons to Suggest Mediation When Your Former Spouse Seeks to Modify Child Support:

Money. Often times, the decision to mediate is financially-driven. Do the math yourself, and determine whether it makes financial sense to spend thousands of dollars in legal fees to make an adjustment to child support that amounts to hundreds of dollars.
Time. In crisis-mode, time is of the essence. A litigated dispute takes time ... lots of it. Mediation provides a more time-efficient method to resolve disputes.
Self-Determination. Who would you prefer to make a final, binding decision affecting your finances, you or a third party? Using mediation will avoid the imposition of a court-determined decision, and will allow you to exercise self-determination.

So, would you mediate or litigate your request to modify child support? Let me hear from you!