Life's Ups and Downs: Support Modification
In New York State, the calculation of child support is in accordance with the Child support Standards Act, and utilizes the parties’ incomes and a percentage based upon the number of children born of the marriage. Basic child support and a pro rata share of other child-related expenses are either set forth in the parties’ written Stipulation of Settlement, trial decision or other Order of the Court.
While the obligation to pay child support in New York State lasts until a child is 21 years old or otherwise emancipated, there are circumstances by which the amount of support may change during the child’s minority. In recognition of life’s ups and downs, some unanticipated and unwelcome and others more fortunate, the child support Standards Act permits upward and downward modifications based upon the following:
(I) A SUBSTANTIAL CHANGE IN CIRCUMSTANCES; OR
(II) THAT THREE YEARS HAVE PASSED SINCE THE ORDER WAS ENTERED, LAST MODIFIED OR ADJUSTED; OR
(III) THERE HAS BEEN A CHANGE IN EITHER PARTY’S GROSS INCOME BY FIFTEEN PERCENT OR MORE SINCE THE ORDER WAS ENTERED, LAST MODIFIED OR ADJUSTED.
HOWEVER IF THE PARTIES HAVE SPECIFICALLY OPTED OUT OF SUBPARAGRAPH (II) OR (III) OF THIS PARAGRAPH IN A VALIDLY EXECUTED AGREEMENT OR STIPULATION, THEN THAT BASIS TO SEEK MODIFICATION DOES NOT APPLY.
Clearly the first basis above is broad and is the subject of more litigation than the other two basis for modification.
In order to pursue a modification of support, a written application to the Court must be filed. Whether the application is made in Family or Supreme court is dependent on whether the court that originally issued the Order retained exclusive jurisdiction over the matter.
The most commonly filed modification petition is that which seeks a downward modification of support by the obligor. This type of petition will generally be vigorously opposed by the parent receiving support, who will often claim that the reduction in the obligor’s income was intentional, and therefore a reduction is not warranted. In this regard, the petitioning party must demonstrate to the Court that not only was the reduction in income involuntary, but also that he/she has made diligent efforts to seek employment commensurate with the prior earning capacity. This is generally a difficult burden to sustain, and if it cannot be demonstrated, a modification cannot be granted. Circumstances involving grave circumstances such as an injury or disability are more likely to be granted upon the production of medical and/or other relevant documentation.
Courts take a parent’s financial obligation to support a child quite seriously and have seen too many disingenuous applications to be anything, but cynical when it comes to applications seeking to reduce money meant to care for a child’s needs. Thus, in the event you are considering the filing of such an application, consult with an attorney and make sure you have all the documentation necessary to pursue your claim.