Child support orders are court orders. As such, parties cannot enter private agreements to modify those orders. Any private agreement to modify must be approved by the court to be effective. Failure to do so can have significant consequences.
In the recent case of Borelli, the parties were divorced in 2014. At the time of the divorce, the husband paid child support of $2400/month for four children, aged 15 to 9. The child support order did not specify what the reduced child support amount would be when the eldest child “aged out” of child support (18 or graduates high school, whichever occurs last). When the eldest child aged out, the husband reduced his support payments by ¼. He did not, however, file a petition to modify child support with the court, and it was unclear if the wife agreed to this modification. He reduced his child support by ¼ again when the second child aged out.
In 2020, the husband filed for a modification of child support arguing that the remaining two children were living with him, and therefore, child support should be modified. At the hearing, the trial court ruled that the husband had over a $50,000 support arrearage, calculated from the time he first reduced child support when the eldest child aged out to the date of his petition to modify. The trial court held it could not modify child support retroactively beyond the date the husband filed his petition.
The husband appealed and the supreme court agreed with the trial court. The Supreme Court held that, in multi-child situations, unless the order says otherwise, when one child ages out, the child support obligor cannot unilaterally reduce child support. Instead, the obligor must file a motion to modify child support and have the support recalculated. It is only when one child is subject to a child support order, and that child ages out, can the obligor stop payment unilaterally.
Borelli teaches that parties who try to modify child support orders on their own do so at their peril. If your case involves a child support order with more than one child subject to that order, you should speak with an attorney before making any changes to that order.
Shaheen & Gordon’s New Hampshire family law attorneys have decades of experience and are ready to help. Contact us to request a consultation.
