Circumstances have changed and you need something else
As circumstances change, our needs also change. The law recognizes this and has made provision for our maintenance orders to be varied (changed) if the circumstances justify the change. The Court will consider matters such as the reason for desiring the change, and the impact that the change is likely to have. The payer or payee, may approach the court for a change to be made to the maintenance order.
Types of changes
Persons who are desirous of a change may approach the Court to request the change. There is no restriction on the changes that can be requested. However, the change in circumstances must be one that took place after the maintenance order was made. A person approaching the Court to request the change must be able to outline to the court how this change in circumstances has made it necessary to change the maintenance order.
Some of the common changes requested include:
- Changing the currency in which payment is made
In previous articles, we have highlighted situations where a child for whom maintenance is being paid lives in another country.
If the maintenance order was made stating the sum of money in Jamaican dollars, a request may be made to change the currency to that of the child’s place of residence for example to United States dollars. This change has also been requested where there has been a relocation since obtaining the maintenance order.
Persons have also requested a change from United States dollars to Jamaican dollars. One of the common reasons for requesting this change has been the frequent changes in the exchange rate. While the impact of this exchange rate is understandable this is not a new reality in our economy, and may very well not be a sufficient reason on its own. There have been cases where this request has been denied where the beneficiary of the maintenance order (e.g., a child) lives in a country where the United States dollar is used, or the payer currently has other expenses such as loans, or other maintenance payments that are paid in United States dollars.
- Changing the method of payment
Oftentimes the recipient of the maintenance sums opts to have the payments made directly to them which leads to undesired conflict. To avoid the conflict, the Court may be asked to require the payer to pay sums to the Collecting Officer of the Court who will monitor those payments and ensure they are made on time and in the correct amount. The reverse may also be requested.
Where there is frequent non-compliance with the direct payments by the payer, it may also be requested that there be an automatic deduction from the payer’s source of income.
Persons approach the Court to change the terms of maintenance orders for many reasons including the following:
- Increase in expenses
There have been cases where persons relied on an increase in their expenses to seek a reduction in the amount of money to be paid. An increase in expenses is not an automatic guarantee that the maintenance sums will be reduced. The person requesting the reduction is usually required to provide proof of income, and the new expenses to help the Court to make a decision. While there may in fact be new expenses, the Court will consider the remaining sums available to the payer. The importance of these new expenses is also considered. For example, is the monthly payment for a second car, or to a new love interest important enough to reduce the monthly payments being made for a child?
- Loss of income
A loss of income is also not a guarantee of a change in the obligation to pay the previously ordered sums especially since the legal obligation to maintain remains. In considering this issue, the Court will consider the person’s earning potential and may translate the potential as actual earnings.
- Increased needs of a child
This is a very common reason but many persons still fail to seek the assistance of the Court to resolve this. As children grow, their needs change and the cost associated with their care generally increases. This applies to disabled adult children as we highlighted in previous articles. The receiving parent may therefore need to seek an increase in the payment. Being able to justify the need for the increased payment is important. For example, an increase in school fees, after school costs, or living expenses.
If a family believes the change in circumstances requires a change in the maintenance order, they should certainly seek the assistance of the Court to resolve the issue. As usual the Court is not biased and will make its decision based on the specific circumstances.
Disclaimer by the author: Nothing in this article is to be taken as legal advice. You should consult an attorney regarding your specific case. All liability with respect to actions taken or not taken based on the contents of this article are hereby expressly disclaimed.