parents and children fighting over child support

Child Support Modification Cases In New York- Downward Modification

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 payors (usually non custodial parents) , as well as custodial parents who are receiving child support, to modify their orders up or down.

This article only covers downward modification situations and is intended to offer general information about the law in New York State only. It is not intended to be legal advice for your particular situation. However I do offer a free telephone or zoom consultation where we can discuss the possibility of obtaining a child support modification. This article also does not discuss the limited situations where it is possible to vacate or reduce child support arrears.

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

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 or voluntary agreement, or if it was made without consent 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 an agreement. For cases made without a written agreement, after a trial or hearing, the legal standard for modification was that the party seeking to modify had to show that there was a “substantial change of circumstances”.

If the child support order was made without a written agreement, the party seeking to modify the support order had to prove a “substantial and unforeseen change of circumstances” occurred after the last order. This standard was extremely difficult to satisfy for both upward modifications and downward modifications, although courts were somewhat more lenient with upward modifications.

Modification Of Support Orders Entered After October 13, 2010

The “new” law (which is now over 10 years old) 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.A
  • 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 where they specifically state what they are agreeing, to, while citing the specific clauses of the statute they wish to opt out of. The parties cannot opt out of the third grounds for modification, a substantial change of circumstances. The most obvious substantial change of circumstances would be a change in child custody, while it is unlikely that a change in the visitation schedule would be considered a substantial change

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 unemployed or making less money. People leave their jobs for many reasons, some good, some not so good. 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, and cannot quit a job in order to get a different 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 of coworkers, New York Court will not reduce his child support. If, during the Covid state of emergency he quits because he is immunocompromised, or caring for an aging or immunocompromised child or parent, and he reasonably believes that the workplace is not safe during covid, New York Courts might reduce his child support.

Many non- custodial parents who don’t make a lot of money have relocated to other states where the cost of living is much cheaper, but salaries are also lower. New York Courts will not reduce child support in this type of situation.

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 although the company claimed to fire you for cause this firing was unjust. If is possible that you prove this by showing that you were granted unemployment, as unemployment does not cover firing for cause.

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. While this issue does not come up often, unless you take an early retirement, It can come up if you have a child or children late in life.

Modification Cases When You Retire Before Age 65

While it is true that you can reduce a New York child support order which is subject to the new law based upon your income going 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 extremely unlikely that NY Courts will entertain a request for a downward modification of your child support obligation just because you have retired. You would pretty much have to show that you were unable to work due to a medical condition or the like. There might be an exception for someone who has very limited education and has always worked as a manual laborer.

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 support magistrate or judge to grant a modification of the child support order If your employer has a mandatory retirement age, and you are laid off because you have reached this age, especially if you have worked for this employer for a very long time.

Even then, the Court would likely expect you to look for a new job, or at the very least some kind of part time job, as nowadays many seniors work part time after retirement. If you retire at age 70 or even later, it is less likely that the court will expect you to have a part time job. Also if the last child support order was relatively high because you had seniority at your last job, the court would probably not expect you to be able to get a comparable job at that age so you would be more likely to get the payments reduced.

You should keep in mind that there are federal laws that restrict age discrimination, except for certain jobs like airline pilot, where physical and/ or mental acuity is very necessary, and you may be expected to try to contest any discriminatory termination by filing a law suit

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 you worked 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 from your job are likely to be very difficult. It is essential that you have the assistance of an experienced family law attorney or child support attorney, preferably one who has a sterling reputation with the Courts.

Can I Reduce My Payments If I Have Another Child ?

You may have an existing child support order and since that order was entered, you may have had another child or children that you are supporting. You may wonder if you can reduce your exiting child support obligations. Once again, the answer may be quite complicated.

It is usually quite difficult to get a reduction in child support because you are supporting other children who live with you. First of all, It is not enough that you show that you are supporting other children, you would have to have a legal obligation to support them. In almost all situations, you would have to be legal father of these children. If you are merely a step parent, you would have almost never have a legal obligation to support children that are not yours.

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 is normally required to use the guidelines formula in determining the amount of child support , obligations, but can 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. In the context of a case where there are other children living with the payor, 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 girl friend and another child that he has with the girl friend. According to the New York City Bar Association 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 girl friend in determining the total resources available to the child living with him.

It is obvious from this example, that deviations will usually be granted when the father has multiple children living with him or in situations where a child or children have special needs which are costly to satisfy. 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 (this is somewhat of an over simplification but it shows the general concept) in child support, which leaves him 83% of his AGI for the other child or children living with him.

There are two separate situations involving a non- custodial parent who has a new child or children.

#1You Already Have A Support Order With A New Baby Who Does Not Live With You

If you have a new baby and you make a written agreement with the mother of that child and start paying her child support, it is unlikely that you can modify the first order. However if the mother of the new baby were to file a child support case for that child, you could get a reduction in child support for the second child based upon the support order for the first child.

#2 You Already Have An Order With A New Baby Who Lives With You

Here, you would have to do a deviation hearing focusing on “resource balancing”, as discussed above. Resource balancing hearings are rare, and you will definitely need an experienced child support attorney or family law lawyer who has either done these hearings before, or can look up the case law and figure out how to do one.

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 torpedo your own case if you don’t put the right things in the petition.

In either case it is better to add the specific facts of your case into the petition. For example you could state that exact amount that your gross income has decreased, as well as the percentage decrease, or that when and how you suffered job loss. You will want to put in sufficient facts, because without facts in your petition, the judge may dismiss your case outright.

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