Ask the court to set aside a default child support judgment based on presumed income
To ask to set aside a default child support judgment based on presumed income that's higher than your actual income, you will need to fill out and file forms with the court. If the court sets aside the judgment, they can recalculate the support amount.
How do I know if the order is based on presumed income?
Take out your copy of the Judgment Regarding Parental Obligations (form FL-630). If item 3 is checked, it means the support amount is based on presumed income.
Before you start
Learn more about the set-aside laws and get help
You must file your request by a deadline. You must file a request to set aside within 1 year of the first collection of child support by the Local Child Support Agency (LCSA). The time starts running from the date the LCSA receives the first payment (of any amount). Payment could come from you directly or indirectly, for example, from an Income Withholding Order or tax intercept.
The court can only set aside the order if your income is substantially different than the presumed income used to calculate support. The court can only set aside your child support order if your income was at least 10% lower or higher than the presumed income.
You may save time by asking the LCSA to set aside the order. The LCSA has a duty to ask to set aside the order if they find out, through their own investigations, that your income is substantially different. You do not have to talk to them first, but it may save you time and avoid having to go to court if you reach an agreement with the LCSA about your child support.
You can get free help from your court's Family Law Facilitator. A Family Law Facilitator can explain your options and help you figure out what the court might order for support if they change it based on your actual income.
Fill out forms
Fill out 4 forms:
- Notice and Motion to Cancel (Set Aside) Support Order Based on Presumed Income (form FL-640) (you only need to fill out Page 1 now, Page 2 is for later)
- Income and Expense Declaration (form FL-150)(attach this to Form FL-640)
- Answer to Complaint or Supplemental Complaint Regarding Parental Obligations (form FL-610) (attach this to Form FL-640)
- Declaration of Obligor's Income During Judgment Period-Presumed Income Set-Aside Request (form FL-643)
For help with filling out these forms, read Information Sheet for Notice and Motion to Cancel (Set Aside) Support Order Based on Presumed Income (form FL-640-INFO).
File your forms
Make 3 copies of everything. The originals are for the court. The copies are for you, the LCSA, and the other parent.
To file your forms with the court:
Give the originals and the 3 sets of copies to the court clerk
The clerk will:
Stamp the forms
Write a hearing date on the Notice form
Keep the originals and return the copies to you
Yes, you can file by mail. Mail your originals and at least 3 copies to the clerk. You need to include a self-addressed stamped envelope so the clerk can mail your copies back to you. If you do not include a self-addressed, stamped envelope you will have to go to the courthouse to pick up your copies.
Some courts allow online filing (called e-file). You can find out if your court has online filing by visiting your court’s website.
Serve your Notice by a deadline
After you file your Notice and get a court date, you must have a copy of the filed papers delivered to the LCSA and your child's other parent. You do this by having someone 18 or older deliver a copy to the LCSA. This person is called your server. If your server delivers the papers to the LCSA at least 30 days before your court date, the LCSA will serve the other parent for you for free.
The server delivers papers to LCSA by the deadline
Your server must mail or personally deliver the papers to the LCSA at least 30 days before your hearing date.
Take out a calendar
Find your court date (it’s listed on the first page of your Notice).
Count backwards on the calendar 30 days. Your court date is not counted (so it’s day “0”).
Check what day this is. If this day falls on a weekend or court holiday, keep counting until you get to a normal weekday. That’s your deadline.
Your server needs to mail or deliver the papers on or before this date.
If your server mails the papers to the agency, you must also fill out and file a Declaration Regarding Address Verification–Postjudgment Request to Modify a Child Custody, Visitation, or Child Support Order (form FL-334). Check item 2 on the form.
The server fills out a Proof of Service
- If your server mailed the papers, you can use Proof of Service by Mail (form FL-335).
- If your server personally served, you can use Proof of Personal Service (form FL-330)
You can fill in the top part of the form with the case and court information. Your server can then fill in the information about how, when, and where they mailed or delivered the papers.
Your server must sign and date the form.
Make a copy of the signed form and file the original with the court at least 5 days before your hearing.
Prepare for and go to your court date
Before your court date
If this is the first time you've been in a courtroom, review some basic tips about how to plan for your day in court.
If you don't speak or understand English very well, you can ask for a court interpreter for your court date. Ask as soon as you get your court date.
On your court date
Go to your hearing at the date and time on your Notice. Child support hearings with the Local Child Support Agency (LCSA) are different than other types of family law hearings. For example
- A lawyer from the Local Child Support Agency will be there
- A Child Support Commissioner will decide your case not a judge
A Child Support Commissioner is a lawyer with experience in child support laws. They are trained to make decisions in child support cases. If you do not want the Commissioner to decide your case, you or the other parent can object before the hearing.
At the end of the hearing, the Commissioner will decide whether to set aside your judgment or not. If they do, they can adjust support. You must follow the court's order.