Most parents do their best to care for their children, including making their regular child support payments. Yet, things don’t always go to plan and events like job loss can affect someone’s ability to make payments or provide for their children.
A parent in this situation may seek a modification to make ends meet and remain in good legal standing while they find new employment.
In New York, both the payor of child support and the payee of child support have the right to file for a modification of child support. In order to request that the court reduce his or her child support obligation, the payor would file a petition for a downward modification. In order to request that the court increase the payor’s child support obligation, the payee would file a petition for an upward modification.
However, each party must meet certain criteria in order to warrant the granting of his or her application.
What are the criteria?
The Family Court Act, Sections 413 and 451, which govern this area of law, requires that for the court to grant a modification of child support, the petitioner must establish one or more of the following three bases for modification:
- A substantial change in circumstances has occurred. If there is a sudden increase in the costs to raise a child or the parent’s income, a court may grant a modification. Incarceration shall not be a bar to finding a substantial change in circumstances provided such incarceration is not the result of non-payment of a child support order or an offense against the custodial parent or child who is the subject of the order or judgment.
- The moratorium has ended. Three years must have passed since a court entered, modified or adjusted the order.
- A change in either party’s gross income. Hard times can find anyone at any time. If a parent’s income increases or decreases by 15 percent or more since the court entered, modified or adjusted the order, they may receive a modification.
Beware that a court shall not consider a change in income as grounds for modification unless it was involuntary and the party has made diligent attempts to secure employment commensurate with his or her education, ability, and experience.
It’s worth emphasizing that a reduction in income that is voluntary or as a result of a payor losing his or her job for cause will most likely not warrant a modification. A payor who let go from his or her job should prepare to prove to the court that their layoff was without cause. For instance, budget cuts can lead to layoffs and termination without cause while someone fired for cause for stealing company inventory.
The payor should also prepare to show they are making diligent efforts at securing new, commensurate employment. Evidence of this sort of diligent effort would include a job search diary, copies of job applications, communications with potential employers, etc.
You should note that if the parties had previously entered into a validly executed agreement or stipulation, like a divorce agreement, and specifically opted out of bases two and three above, the court may not consider those bases as a ground for modification in either direction when met with a modification petition.
Helping you through an uncertain future
In the age of COVID-19, companies are laying people off at an unprecedented rate. We will learn a lot about how the courts will deal with these layoffs and inevitable petitions for downward modifications of child support in the coming months.
At the Cedeno Law Group, we handle these family court child support matters daily. We would be happy to help you navigate this territory and hopefully achieve your goal, whether that be an increase or a decrease in child support.