2021 will see 5 major changes to the child support guidelines, one of which will allow the Court to decline to award any child support if certain circumstances exist. Child support law current through September 30, 2021 does not entitle a Court to decline to order child support. These changes will be found in Family Law Article §12-202(b) and apply to cases filed on and after October 1, 2021*.
Circumstances under the new law allowing a no support order are:
- The child lives with the parent from whom support is sought and the parent is contributing to the child’s expenses
- The parent is unemployed, has no resources to pay child support, and is incarcerated and expected to remain so for the remaining time support would be paid (but also see 2020 updates about incarcerated obligors/payors[LP1] )
- The parent is institutionalized in a psychiatric care facility and expected to remain so for the remaining time support would be paid
- The parent is totally and permanently disabled, unable to obtain or maintain employment, and has no income other than SSI or SSCI benefits (in which case, there is usually a dependent benefit paid for the child’s support)
- The parent is unable to obtain or maintain employment in the foreseeable future due to criminal detainment, hospitalization or rehab
Interestingly, the new law also provides that a parent meeting or ceasing to meet the criteria above shall be a material change in circumstance to modify the child support award. This recognizes that the qualifying circumstances above may not be permanent and support could be awarded in future.
However, the law doesn’t tell us how this material change language fits with Family Law Article §12-202(b), that changes to the child support guidelines law are not, themselves alone, a material change in circumstance to justify a modification of child support. So, if the circumstances above exist on September 30, 2021, can a parent receive a termination or suspension of child support based upon the new law? Hard to say for sure. But if a parent does not make a request of the court, a parent won’t know.
Why did this come about? Because Maryland is legally required to review its child support guidelines every 4 years and perhaps because research has shown that child support orders for too high an amount in fact result in less child support actually being paid. So, by comparison, requiring payment of child support when a parent has no legally justifiable ability to pay may result in less child support being paid over the child’s lifetime. Also, certain of the circumstances are in keeping with federal law.
What tips should parents and attorneys keep in mind?
- Don’t forget Family Law Article §12-104.1 if the basis is incarceration. Because these two statutes are different but both apply to incarcerated payors obligors. Compare the two when incarceration is justification for a suspension or termination of support. (See article about 2020 Updates Incarcerated Obligors/Payors[LP2] )
- Consider material change if requesting a modification after October 1, 2021*. Per Maryland law, changes to the child support guidelines law are not, themselves alone, a material change in circumstance to justify a modification of child support (Maryland Code, Family Law Article §12-202(b)). Other material changes are needed to obtain a modification of child support. Make sure those changes exist and are stated in your Court filings. And if not and helpful to your position, point that out to the Court.
- Use the 2021 law changes as a reference point for the Court. If a termination or suspension of child support is requested before October 1, 2021 based on circumstances that would allow a no support order under the new law, refer the Court to the new law if helpful to your position.
- Don’t delay. If these circumstances exist now, they may justify a modification, suspension, or termination of child support now. Plus, modification can only be granted retroactive to the date a request is filed with the court*.
* Damon v. Robles, 245 Md.App. 233 (2020) provides an interesting and complicated discussion of when these exclusions may not apply. Worth a look if interested in applying October 1, 2021 changes to cases filed or circumstances existing before that date.
For other articles in this series about updates to the child support guidelines law in 2020 and 2021:
- 2020 Updates
- 2021 Updates
Since 2002, Lindsay Parvis has represented clients in Maryland custody, divorce, and marital matters. She negotiates, litigates, and advocates for the best interests of her clients, whether in contested litigation, uncontested settlement, or premarital and other agreements. Her clients are not only spouses and parents, but also children whose interests she is appointed by the court to represent in contested custody litigation. Lindsay strives to improve Maryland law in the General Assembly, volunteering her time to monitor, advocate, and educate about legislative developments in family law.