parents and children fighting over child support

Understanding Child Support Modification Cases- Article By Family Law Attorney

Getting your New York child support order lowered can often times be quite difficult, especially when the last order was entered before October 13, 2020, when the law was changed . On that date, a “new” law was passed which made it easier for a noncustodial parent (sometimes called “obligor”) , as well as for a custodial parent (sometimes called “obligee”) who is receiving child support, to modify orders up or down.

This article is intended to offer general information about the law in New York State only. It is not intended as legal advice for your particular situation. Legal advice can only be given by an experienced child support attorney at an actual consultation. This article does not discuss the rare situations where it is possible to vacate child support arrears.

When analyzing this issue, the first thing you need to know if if the last final order for child support was made after October 13, 2010. Since this was over 12 years ago, most of the time you will be dealing with prior orders made since then.

in these situations, in general, the court may be able to grant a downward modification of a child support order based upon either a loss of income of the payor, or an increase in income of the payee of the order, however in the situation where there is a loss of income of the payor this loss of income must be involuntary.

Child Support Modification Cases- Last Order Was Before October 13, 2010

Image of family court building with child support litigants

Under the old law, there were different legal standards for modifying child support orders depending on whether or not the last order was reached by stipulation, voluntary agreement, or after a trial or hearing.

Strangely, it was harder to modify a child support order which was made with an agreement than one which was made without one. To modify an order made after a trial or hearing, the party seeking to modify it had to show that there was a “substantial change of circumstances”.

If the last child support order was made with a written agreement, the party seeking to modify the support order had to prove a “substantial and unforeseen change of circumstances” occurring after the last order. This standard was often extremely difficult to satisfy.

Modification Of Support Orders Entered After October 13, 2010

The “new” law  made it significantly easier for either party to get a modification of an order which was made after October 2010. Under the “new” law, a party may seek a modification in the following three circumstances:

  • The income of either party has gone up or down by 15% since the date of the last order.
  • Three years have passed since the date of the last order.
  • There has been a substantial (but not necessarily unforeseeable ) change of circumstances.

Under the new law, the parties can “opt” out of the first two grounds in a written child support agreement by incorporating an op-out clause.

Can You Get A Modification After You Quit Your Job?

It is very difficult to get a downward modification if you quit your job voluntarily and are now either unemployed or making less money. New York Courts believe that a non-custodial parent who has a child support order cannot just quit without having another job to go to, or quit a job in order to get a “better” job that pays less.

If the non-custodial parent quits his job because it is boring, does not have opportunities for promotion, or he doesn’t get along with his boss or coworkers, New York Court will not reduce his child support.

If the non- custodial parent relocates to another state where the cost of living is much cheaper, but salaries are also lower, New York Courts will not reduce child support.

If you are fired for cause, it will be very difficult to get your child support reduced. You would pretty much have to prove that the firing was unjust.

If you were laid off and not fired, you could qualify for a reduction, but you would have to prove that you were laid off, and also that you made diligent attempts to get a job for the same salary you had before.

Can You Reduce Your Support Order If You Retire?

You may be surprised to learn that, under New York State Law, you may not be able to reduce your child support payments when you retire. .

Modification Cases When You Retire Before Age 65

While you can reduce New York child support under the new law if your income goes down by 15%, this does not apply to situations where the reduction of income was voluntary.

If you voluntarily retire before age 65, it is unlikely that NY Courts will entertain a request for a downward modification of your child support obligation just because you decided to retire. You would have to show that you were unable to work due to a medical condition or the like.

Modification Cases When You Retire At Or After Age 65

If you retire at age 65 or later, you may be able to convince a New York court to grant a modification of the child support order if you were laid off because you have reached a mandatory retirement age, especially if you have worked for this employer for a very long time. 

Factors NY Courts Will Consider If You Retire After Age 65

If you retire voluntarily at or after the “normal” retirement age of 65, and want to get a New York court to decrease your child support order, New York courts will likely consider the following factors:

  • Your age
  • The type of work that you were doing before you retired
  • How long did you work at your last job?
  • Your general health and specific health issues, if any
  • Your highest level of education
  • The job market for similar jobs
  • Any attempts you have made after retirement to find full-time or part-time jobs
  • Your total financial resources
  • The age of the subject child or children
  • The needs of the subject child or children
  • The resources of the custodial parent

Cases where you have voluntarily retired are likely to be very difficult. It is essential that you have the assistance of an experienced family law attorney or child support attorney.

Can You Get Credit For Other Children?

Spoiler alert…It depends! There are two possible situations.

Situation # 1 You Have Children Living With You

It is usually quite difficult to get a reduction in child support on a new order because you are already supporting other children who live with you. First of all, you would have to have a legal obligation to support them. In almost all situations, you would have to prove that you are the  legal father of these children.

Second, the court would have to do a deviation hearing, wherein you would be asking the court to deviate from the normal child support guidelines formula. Under New York child support law, the court can only deviate from the formula in situations where applying the formula would result in a child support order which is unjust or inappropriate.

At this hearing, the party asking the court to deviate from the guidelines has the burden of proof. This hearing is sometimes referred to as a resource balancing hearing .Family Court Act 413 specifically states that the court can compare the “resources” available to the children who are living with you to the “resources” available to the child that you are being asked to pay child support for.

It is interesting that the statute uses the term “resources” instead of income or adjusted gross income. While the calculation of child support under the support guidelines formula is based upon adjusted gross income of the parties, courts have found that the term “resources” is much broader than income, and, for example, can include assets.

The statute also allows the court, in this type of “resource balancing” hearing, to consider the non-custodial parent’s expenses, at least expenses which are related to raising the children who reside in his home. These expenses could include child care expenses, health care expenses, health insurance expenses, and possibly educational expenses.

The New York City Bar Association’s website gives an example of resource balancing where a father is being asked to pay child support for a child and he lives with his girlfriend and another child that he has with his girlfriend. According to the website, the child support court would look at the amount that he was being asked to pay under the formula and compare that amount with the amount of resources left over to support the other child. However, they would add in the income of the girlfriend in determining the total resources available to the child living with him.

Deviations will usually be granted when the father has multiple children living with him or has a child with expensive special needs. This is because if the new child support case is for one child, the father will only have to pay 17% of his adjusted gross income in child support for that child, which leaves him 83% of his AGI for the other children living with him.

Fathers who are very poor or who have  high alimony or spousal support payments may sometimes get a break in a resource balancing hearing.

Situation # 2 Prior Order For Children Who Do Not Live With You

If you have a new baby and you already have a child support order for one or more other children, you are likely to get credit for payments that you actually are making under the order (or written agreement) against the new order.

Drafting And Filing A Modification Petition

If you are going to be drafting and filing your own petition for a downward modification or upward modification, there are sample forms available on the New York Court’s website. These forms assume that you are subject to the “new” law, and spell out the three grounds for a modification fairly well. However, if your last child support order was dated before October 13, 2010, you will have to either hire an experienced attorney to help you, or figure out how to fill out and modify the form. Even under the new law, if you fill out the forms yourself without using a lawyer, you may end up torpedoing your case.