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Modifying Support after Divorce and Family Code 3664

by | Apr 19, 2024 | Uncategorized

Once you have completed your divorce and a Judgment has been entered to resolve your matter, you are not usually done with everything forever.  This is especially true if you have minor children or if child and spousal support are at issue in your case.  In your divorce decree you will have addressed the child sharing, child support and spousal support issues, as well as the property division issues, and while the property division will be final, the Court will typically retain jurisdiction to modify the terms related to the sharing of the children and support.  The Court standard to be able to seek a change in the child and spousal support orders after Judgment is a requirement to show there has been a substantial change of circumstances.  Changes to our own circumstances are easy to track in that we have access to the information proving the changes to our own situation.  This week’s blog addresses how we can gather information about what is happening on the other side of the ledger with our former spouse/other parent.  We will explore Family Code Section 3664 which allows for making an annual request for updated income information and provides a mechanism for obtaining the information directly from the employer if the other party fails to comply with the request.  Support orders do not typically modify automatically as circumstances change so it is important to know the tools at your disposal to assure that support continues consistent with your and your former spouse’s ever changing financial circumstances.


Substantial Change of Circumstances.  With child support the most common changes in circumstances warranting a review of child support is a change to the child sharing schedule resulting in an adjustment to the time the children are spending with each parent, and changes to the income situation of either parent.  As mentioned, we know what is happening under our own roof regarding our own income, but we are often in the dark as to what is taking place with the other parent.  A parent may remarry or have new children with their new partner which may impact child support calculations, but the most common changes take place regarding income.  With spousal support there are more variables considered by the Court as set forth in Family Code Section 4320.  That will be the subject of another blog post.  Changes in income, such as one spouse losing their job, receiving a substantial raise, promotions, retirement and other similar events, are the most common events that warrant making adjustments to the support orders rendered at the time of the divorce.


Assessing the Other Side of the LedgerOnce we have separated and have moved past the divorce requirements of full disclosure it is common to lose sight of what is happening financially with the other parent.  Over time I have seen parties file motions post divorce anticipating that they will be able to favorably adjust the support orders based upon their estimate of what is happening financially with the other party.  Once the motion has been filed and the other party responds they may be shocked to find that they had inaccurately estimated the other party’s income and their motion to seek a favorable adjustment results in the opposite, with their support order unfavorably adjusting upward or downward.  As we will get into, the intention behind Family Code Section 3664 is to allow you a peek into what is happening financially with the other party so that you can assess if a review is warranted without opening up the whole can of worms.  Let’s dive a little deeper into this option.


The Basics of Family Code Section 3664The first part of Section 3664 sets forth the particulars of what each party is able to request and when:


“(a) At any time following a judgment of dissolution of marriage or legal separation of the parties, or a determination of parentage, that provides for payment of support, either the party ordered to pay support or the party to whom support was ordered to be paid or that party’s assignee, without leave of court, may serve a request on the other party for the production of a completed current income and expense declaration in the form adopted by the Judicial Council.”


Simply put, for so long as child or spousal support remains at issue in your matter, you are entitled to request, on a yearly basis, an updated Income & Expense declaration from the other party to include supporting current paystubs and tax return filings.  You are not required to involve the Court in your request so there will not be a pending hearing arising from the request.  


It is important to keep in mind that you are required to provide the same information to the other party upon their request.  You may want to be really thoughtful before making the request if your own financial circumstances have improved since the last orders were made.  This exchange of information may tip the other party to their own eligibility for a favorable adjustment to the support orders.


What if the Other Party Fails to Respond?  Family Code 3664 provides a mechanism for obtaining the income information directly from the employer if the other party fails to comply with voluntarily providing the required information.  If you are going to make a request for the other party’s income information, be sure to closely review section 3664 before doing so as there are very specific steps to take in making the request, first from the other party, then from the employer.  This includes using Form FL-396 to make the request, sending the request directly to the other party via certified mail, postage prepaid, return receipt requested.  Once the other party has been provided 35 days to respond to the request and they have failed to do so, then a separate form, FL-397, is served on the employer as well as the other party and/or their attorney of record, if they have one.

Some Final Considerations.  Things change after couples are able to sort out the terms of their divorce or the Court renders a final decision at trial.  It is for this reason that the policy of the Court is to leave the door open to changing child sharing schedules, child support and spousal support.  In many cases support is set and it continues until it is stopped by operation of law.  Most parties are not thrilled about or interested in having to return to the Court after they have finished for the first time.  With that said, if the financial circumstances of either party change it may be perfectly reasonable to have the support orders adjusted consistent with such changes.  Family Code Section 3664 gives you and the other party the ability to take a quick peek at the other side of the ledger without stirring things up too much.  The Court acknowledges your right to check in occasionally to assess the situation with minimal expenditure.  Consider using 3664 to get the information you need to assess if a change is warranted.  In doing so, understand there is reciprocity in the request and your peek may result in them peeking as well.  Sometimes it may make more sense to simply let sleeping dogs lie.