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Claims of Undue Hardship and Child Support

Since the introduction of the Federal Child Support Guidelines, the calculation of the amount of child support that is payable in a family law case has generally become easier and more certain.  However, on occasion a person required to pay child support wants to reduce the amount of child support payable under the guidelines on the basis that they are undergoing hardship as a result of having to pay this amount.  A common example is the situation where the person who is paying the child support for a child of an old relationship, enters into a new relationship, and as a result of that new relationship is required to support one or more other children.  What are the chances that the amount of child support will be reduced?

Section 10 of the Federal Child Support Guidelines allows for a person to apply to the Courts to vary the amount of the child support that would otherwise be payable under the guidelines on the basis of undue hardship.  Under this section the Courts have applied a two-part test to decide whether to reduce the child support that is payable:

1. Firstly, the person applying to reduce the child support must show that they are suffering undue hardship as a result of having to pay the amount of child support provided for by the guidelines; and
2. Secondly, if the claim of undue hardship is established, then the person applying to reduce the child support must show that his or her household would have a lower standard of living than the household of the other parent.

Under the first part of this test, the Courts have stated that to establish undue hardship, an applicant must show excessive or disproportionate suffering or difficulty as a result of having to pay the child support.  The hardship must be more than an inconvenience or awkwardness. Therefore, a general claim by an applicant that "I can't afford to pay this amount" will not usually qualify as undue hardship.  Also, it is usually not enough that the applicant have obligations to a new family that create a certain degree of economic hardship, or that the applicant have a lower standard of living than the person who is receiving the child support.  As a result, the consistent message from the Courts is that a person applying to reduce the amount of child support they pay based on undue hardship has very much an uphill battle and that such relief will only be granted in exceptional circumstances.  In the end, any person who wants to raise this undue hardship argument to reduce the child support they pay should talk to a lawyer before making such a claim.  

by Glyn L. Walters
July 10, 2002