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MODIFICATION OF SUPPORT

You may be paying more for child support than you are legally obligated to pay or you may need a judge to enforce an existing order. In either case, Family Law Attorney Eric P. Roy, Esq. can handle the matter to ensure that you are not left destitute either because you have been ordered to pay too much or because your former spouse refuses to pay.

An order for the support of a child may be reviewed at any time on the basis of changed circumstances. Pursuant to Nevada Law, a change of 20 percent or more in the gross monthly income of a person who is subject to an order for the support of a child shall be deemed to constitute changed circumstances requiring a review for modification of the order for the support of a child.

However, a modification for support must be requested in the jurisdiction that issued the order unless all of the parties reside in another. Therefore, if a support order was issued in Florida, Nevada may modify that order only if all the parties are in Nevada or the child and a parent is in Nevada and the obligor has the requisite minimum contact with the state of Nevada to establish jurisdiction.

If an order issued by a court provides for payment for the support of a child, that order is a judgment by operation of law on or after the date a payment is due. Generally, such a judgment may not be retroactively modified or adjusted and may be enforced in the same manner as other judgments of this State.

Nevertheless, in any post divorce or custody matter, the parties may modify the terms of a support agreement by express or implied agreement. In addition, additional equitable defenses such as estoppel or waiver may be asserted by the obligor in a proceeding to enforce or modify an order for child support or to reduce child support arrearages to judgment.

To establish a valid waiver, the party asserting the defense must show that there has been an intentional relinquishment of a known right. However, the defense may not be applied to preclude recovery of a child support obligation if the waiver was the result of fraud or duress, or if its application will be injurious to the child.

While a waiver may be the subject of express agreement, it may also "be implied from conduct which evidences an intention to waive a right, or by conduct which is inconsistent with any other intention than to waive a right. Under those circumstances, whether there has been a waiver is a the following four elements must be proven:

  1. The party to be estopped must be apprised of the true facts;

  2. he must intend that his conduct shall be acted upon, or must so act that the party asserting estoppel has the right to believe it was so intended;

  3. the party asserting the estoppel must be ignorant of the true state of facts;

  4. he must have relied to his detriment on the conduct of the party to be estopped.

The requirement of actual knowledge of the true facts on the part of the party to be estopped does not apply to a party whose affirmative conduct, consisting of either acts or representations, has misled another.

If a party gets married after an order for support is issued, the new spouse's income may be used to modify support. The Nevada Supreme Court has ruled that although the narrow statutory definition of "gross monthly income" does not encompass community income, an examination of a remarried parent's "relative income" pursuant to NRS 125B.080 may properly include consideration of his or her one-half interest in the new spouse's income.

Generally, a modification of support is accomplished by filing a motion to modify custody and attending a hearing. However, under some circumstances, such as where there is a dispute as to arrears, a court may set an evidentiary hearing. In either case, you need an experienced and accomplished Family Law Attorney like Eric P. Roy, Esq. to make sure the payments you are making are fair or that your ex pay his/her fair share for child care.