Requests to Set Aside a Child Support Order Based on Presumed Income

In child support cases filed by the Department of Child Support Services through the Local Child Support Agency (LCSA), the LCSA sometimes uses what is called “presumed income” to calculate the child support amount someone should pay. This happens when the LCSA has no actual information on a parent’s income in the case,  and they use an income amount—usually, minimum wage based on a 40-hour work week—as his or her income.

If you did not respond to the Summons and Complaint filed by the LCSA and did not tell them your actual income, the child support judgment entered against you could be based on this “presumed income” amount. If the amount used is more than you actually make, then the child support amount you are ordered to pay may be too high. And, if you make more than minimum wage, the child support amount you were ordered to pay may be lower than the law requires for your income level.

If the child support default judgment against you is not based on your real income, the law gives you extra time to ask the judge to cancel (set aside) the court order and re-calculate how much child support you should pay based on your actual income.  Make sure you understand the different results that could happen if you file this kind of request. Talk to your court’s family law facilitator before filing a request.

General rules for a motion to cancel (set aside) a child support order based on presumed income:

  • You can only have the child support amount canceled and re-calculated if you win your motion to set aside. If you also want to cancel or set aside the parentage (paternity) judgment, you have to file a separate motion. Click to find out more about disputing parentage/paternity.
  • You must file the motion to cancel the order based on presumed income within 1 year of the first collection of child support by the LCSA. The time starts running from the date the LCSA receives the first payment (of any amount).
  • The judge may cancel (set aside) your child support order only if your income was “substantially different” than the presumed income amount. This means your actual income must have been at least 10% lower or higher than the presumed income.
  • If the LCSA finds out on their own, through their required investigations, that your income is different from the presumed income amount, they have a duty to ask for a set aside of the child support order to adjust it to the amount based on your actual income.
  • You may be able to get the LCSA to agree on their own to cancel the existing order and calculate a new one, based on your income. You do not have to talk to them first, but it may save you time and avoid having to go to court if you can reach an agreement with the LCSA about your child support. You may ask the family law facilitator to help you understand your options.

To file a Notice and Motion to Cancel (Set Aside) an Order Based on Presumed Income, follow these steps:

  1. Fill out your court forms.
    Fill out:
    • Notice and Motion to Cancel (Set Aside) Support Order Based on Presumed Income (Form FL-640). Fill out this form carefully. In it, you explain your request.
    • For more information about how to complete form FL-640, read Information Sheet For Notice and Motion to Cancel (Set Aside) Support Based on Presumed Income (Form FL-640-INFO).
    • Income and Expense Declaration (Form FL-150) or Financial Statement (Simplified) (Form FL-155). It is important you show what your income has been during the entire period the LCSA is asking for child support. You must also be sure to attach copies of your paystubs or proof of income as instructed by form FL-150 or FL-155.  Read Which Financial Form - FL-155 or FL-150? (Form DV-570) to find out if you can use the simpler Form FL-155.

  2. Have your forms reviewed.
    Ask your court’s family law facilitator or self-help center to review your paperwork. They can make sure you filled it out properly.

  3. Make at least 3 copies of all your forms.
    Copy all of the forms listed under step 1 (including any attachments to any of the forms). One copy will be for you; another will be for the LCSA, and the third copy will be for the other parent. The original is for the court.

  4. File your forms with the court clerk and get your court date.
    File the original and copies of all the court forms listed in Step 1 at the clerk’s office in the court handling your case. The clerk will keep the original (for the court) and return the 3 copies to you, stamped “Filed."
    • In general, there is no filing fee. But if you are asked to pay a fee and you cannot afford it, you can ask for a fee waiver.
    • The clerk will also give you a court date and write it on page 1 of your Notice and Motion (Form FL-640). That will be the court date when the judge will hear your request.

  5. Serve the LCSA and other parent with a copy of your Notice and Motion.
    Have someone 18 or older (NOT you) serve the LCSA and the other parent with a copy of your Notice and Motion (Form FL-640).
    • You can have LCSA and the other parent served by mail or in person. Remember: You cannot serve the papers yourself. You must have someone else serve the papers for you.
    • If you have your Notice and Motion served in person, it must be done at least 16 court days before your court hearing.
    • If you have your Notice and Motion served by mail, you must do it at least 16 court days before the hearing plus 5 calendar days for mailing.

    Get more information about “service.”

  6. File your proof of service.
    Have your server (the person or persons who mailed or hand-delivered your papers to the LCSA and the other paent) fill out a proof of service (you can use Proof of Personal Service (Form FL-330) or Proof of Service by Mail (Form FL-335)) and give it to you so you can file it with the court. It is very important that your server fills out the proof of service correctly. If possible, have your family law facilitator or self-help center review it to make sure it was filled out properly.

  7. Go to your court hearing.
    Go to your court hearing and take a copy of all your papers and your Proof of Service.

    Read Going to Court to find out how to prepare for your court hearing.

After the court hearing

If the judge makes a decision at the court hearing, he or she will let you know if your motion was granted or denied. If it was denied, it means the child support judgment or order you were trying to cancel continues to be the court’s order.  If the judge agrees with you and cancels the existing child support order, he or she will calculate a new order for you based on your actual income. That will be your new child support order.

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