Modification

Any petition for child support modification filed within two and one-half years of the last determination of current support must allege with particularity a substantial change of circumstances not caused by the petitioner’s voluntary or wrongful conduct except as described in Rule 501(j) and 506(c). Furthermore: (a) No modification will be ordered unless the new calculation produces a change of more than 10%. (b) Beyond two and one-half years, neither the “particularity” nor the “10%” requirement applies. (c) An obligation may be adjusted upwards or downwards, and the payor and payee may be reversed, regardless of who filed the petition. (d) An update or adjustment to the Delaware Child Support Formula pursuant to Rule 500(b) does not constitute a change of circumstances sufficient to modify an existing order for current support even if the amount of current support would change as a result of the update or adjustment. (e) Any petition for modification of an arrears only order filed within two and one- half years of the last establishment by the Court of an arrears only payment after either a hearing on the merits or stipulation of the parties must allege with particularity a substantial change of circumstances not caused by the Petitioner’s voluntary or wrongful conduct except as described in Rule 501(j). (f) Annual Document Exchange. Any party subject to an active current child support obligation may initiate an exchange of child support financial disclosure reports as required by Rule 16(a). Specifically: 1. An exchange is initiated by a party to an ongoing current support obligation sending their own completed financial report along with a blank financial disclosure report form to the other party to complete. The receiving party shall return their completed report with all attachments within 30 days. 2. If the exchange is initiated prior to May 1, tax returns exchanged shall be the most recently filed by the party. After May 1, tax returns exchanged shall be for tax year immediately preceding. If the party has received a tax filing extension, they shall instead submit equivalent financial records such as a draft return with attachments. An exchange may be limited in scope such as the parties’ 3 most recent pay stubs incident to a recent change in employment. 3. Attached to each financial disclosure report shall be all documentation otherwise required by Rule 500(c) to be submitted in preparation for a hearing. 4. No party shall initiate an exchange more than once per year or within 6 months after the most recent Court determination of current support (including the dismissal with prejudice of a petition for modification), or in the calendar year in which the last child subject to the order will reach their 17th birthday. A nonparent child support recipient shall only be required to provide information that is directly relevant to the calculation of child support. 5. The Court will assist, upon request, with the exchange if compliance may violate a no-contact order with the other party or any resident in the other party’s home, or if a party has been granted confidential address designation pursuant to Rule 90.1(d). 6. An independent Motion to Compel may be filed upon an opposing party’s failure to comply with a properly initiated exchange. The motion may be decided on the papers or after a hearing at the discretion of the Court. The motion shall have attached a copy of the moving party’s own financial report and proof of actual delivery to and receipt by the noncompliant party. 7. If the Court finds a party has failed to make a good faith effort to comply with this rule or used this rule to harass or abuse the opposing party, the Court may: i. Direct the party to comply with the rule within a time certain or else appear before the Court for contempt; ii. Authorize the compliant party to file a petition for modification not subject to Rule 508(c). iii. Require the noncompliant party to pay court costs and attorney’s fees incurred by the compliant party; or iv. Any other relief the Court finds just and appropriate. 8. The Division of Child Support Services and Department of Justice are not required to facilitate the operation of this rule, and the fact of those agencies’ involvement shall not constitute a basis to relieve or excuse either party of their obligations under this rule. History. Adopted, effective Jan. 1, 2011; amended Jan. 28, 2015, effective Apr. 20, 2015; Nov. 8, 2018, effective Feb. 1, 2019; Dec. 6, 2022, effective Feb. 1, 2023. Rule 509. Retroactive support. (a) Retroactive support in a new support action shall be presumed at 6 months prior to the date of filing. The burden of proof shall be on the party seeking greater or lesser retroactivity. Retroactivity shall not exceed 24 months prior to the date of filing and shall not predate the resolution of a previous new support action wherein current support was declined by the same petitioner, or not awarded due to the same petitioner’s failure to appear. (b) Retroactive support is determined by the totality of the circumstances. Whether or not the value of direct, in-kind, or other support provided is comparable to the amount indicated by the Formula is not conclusive of whether retroactive support should be awarded. Factors to be considered include but are not limited to whether: (1) The parent has: (i) The ability to pay; (ii) Been aware of the possible parentage; (iii) Other children to support; (iv) Avoided service of process; (v) Meaningfully contributed financially or in-kind to the care of the child and whether those contributions were realized within the child’s primary residence; (vi) Been incarcerated, institutionalized, hospitalized, or otherwise involuntarily absent from the workforce. (2) The party seeking support has: (i) Exercised due diligence in pursuing legal remedies; (ii) Made requests for assistance that have gone unheeded; (iii) Incurred debt to compensate for the lack of support from the other parent. (3) The child or children have special financial needs; (4) The parents’ finances have been intermingled including if the child has resided in a home to which the parent has provided material support; and (5) The parties have or had a formal or informal support agreement and whether the agreement was honored. (c) Retroactivity prior to the filing date shall not be awarded for any period of incarceration subject to the exceptions contained in Rule 501(k), or incident to foster care placement. (d) Retroactive support should be repaid at a rate equal to 20% of the most recent calculation of current support (but not less than $20) if: (1) Current support is ongoing; (2) Current support is not ongoing, but the subject child or children reside in the home of obligated parent; or (3) Current support is not ongoing, but the retroactive support is owed to the State. However, when imposing a payment term in a case where all arrears have been assigned to the State of Delaware, and the individual has other child support accounts owed to private individuals or other States, then the repayment element of the obligation owed to the State of Delaware should be $20 per month. (4) In addition to any other repayment term, genetic test costs should be paid at the rate of $20 per month. In all other instances repayment shall approximate the amount that would have been due if current support had been ongoing. If a calculation is performed, it should be based upon the obligated parent’s income alone with a 50% primary share and increased by 20% to simulate an arrears payment. Deviation may occur by agreement, upon subsequent or repeated contempt for non-payment, or for good cause shown. History. Adopted Nov. 8, 2018, effective Feb. 1, 2019; Dec. 6, 2022, effective Feb. 1, 2023.