When Circumstances Change: Factors Considered in Modifying Child Support

A common issue for many divorce litigants in New York, both before and after a divorce is finalized, is paying or getting paid child support. Under New York law, child support is awarded based on the Child Support Standards Act, or CSSA, which provides a formula and guidelines. However, there are often change’s to a party’s income over time. When this shift is downward, it may have a significant impact on that person’s ability to make their child support payments. On the other end of the spectrum, if there is an increase in a parent’s income, their child may very well be entitled to benefit from that increase as though their parents were still married. Either way, it is important that if there is a shift in income one way or the other, the party seeking a change (or defending against one) contact a New York family law lawyer or attorney to help them best handle the situation.

One frequent reason that a non-custodial parent will seek a decrease in child support is because they are now unemployed. Under New York, the court will take a close look at certain factors, such as:

  1. Whether the party claiming to have lost their job did so through no fault of their own.

If the court determines that the person seeking what is known in New York as a “downward modification” has lost their job due to no behavior from their end, they are more likely to award a modification decreasing the child support order. Where someone has quit their job, the court is less likely to award a support modification, on the basis that doing so would be subsidizing that parent’s choices, which were made without taking their responsibility to their children into account. Similarly, if they were fired for cause, a New York court will have very little sympathy.

  1. Whether that party is capable of earning more and chooses to be unemployed or underemployed.

For example, if someone is capable of working full time and earning a particular amount in one field but chooses to switch to a lower paying field or part time position, that is their decision and does not change their original responsibility to their children financially. Therefore, if a litigant who took a lower paying position wants a downward modification, it is necessary for their lawyer or attorney to show the court documentation of their attempts to find a position paying comparably to what they were earning at the time the original CSSA order was issued, or medical documentation showing why they can no longer work full time.

Additionally, small changes to income or expenses will not be sufficient to get a downward modification under New York law. Rather, there needs to be a “substantial change in circumstances” to prevail. As mentioned before, without any documentation provided by the party’s lawyer or attorney, any downward shift is going to be considered self-imposed and therefore not going to qualify for a decrease.

With respect to seeking an upward modification of a child support order under New York law, the party seeking the increase will have to show that there was, once again, a substantial change in circumstances regarding the non-custodial parent’s finances. Here, the party’s lawyer or attorney will need to set forth a detailed list of the child(ren)’s expenses and needs, and show how without the upward modification, they are not being met. Showing that the other party’s income has greatly increased, or claiming the cost of inflation, or increased expenses because of the age of the children, is not enough to get an upward modification.

However, it is important to note that the above applies strictly to cases where the child support order that comes through court decree or is based on an agreement merged into the judgment of divorce. Where the child support payments are from an unmerged agreement between the parties that is separate from and survives the judgment of divorce, the court will not modify the order upward or downward unless one of the following can be established:

  1. The agreement was not equitable or fair when entered into; or
  2. An unanticipated or unreasonable change of circumstances has occurred, resulting in a particular showing of need.

This is because separation agreements or separate agreements are intended to be final and barring the instances stated above, should not be set aside or modified.

Therefore, in all cases, if you are doing an agreement regarding child support under New York law, you must have your divorce lawyer or family law attorney look at any proposed agreement with a great deal of care, and make sure the right type of agreement for your current and anticipated future needs is being entered into.

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