There are two types of child support modification cases. A downward modification is when the payor (who is usually a non-custodial parent) wants to reduce the amount of child support payments. An Upward modification is when the payee ( usually the custodial parent) seeks to increase the amount of a child support payments.
In both situations different legal standards will apply, based upon the date of the last child support order. New York cases brought to modify orders that were made prior to October 13, 2010, use the “old” standards, while cases brought to modify orders made after October 13, 2010, use the “new” standards which were spelled out in a “new” child support law passed on that date.
Child Support Modification Cases Where The Last Order Was Before October 13, 2010 (The “Old” Law)
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 an agreement 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 an agreement, after a trial or hearing, the party seeking to modify 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.
For example, a father seeking a downward modification of a prior order made on agreement, if he had his own business, and the business was not doing well, courts usually reckoned that all businesses are subject to decreased income due to economic or other factors, so that this would not be considered “unforeseen”. If the father had a regular job, but had been getting substantial overtime and agreed to an order, trying to show that a loss of overtime was “unforeseen” would probably be extremely difficult.
For a mother with custody to get an upward modification because the child or children had gotten older and required more food or more expensive clothing would also fail to be considered “unforeseen”.
Modification Of Support Orders Entered After October 13, 2010 (“New” Law)
The “new” law (which is no longer new as of the date of this post) 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 make 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
The parties can “opt” out of the first two grounds if this is 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.
Can You Get A Downward Modification After I Quit My Job Or Got Fired?
It is very difficult to get a downward modification if you quit your job voluntarily and are 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 i has a child support order cannot just quit without having another job to go to. A di
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 he quit because he is immunocompromised, or caring for an aging or immunocompromised child or parent, and he quits because the workplace is not safe during covid, New York Courts may 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 either. They take the position that once you have a child support order your are responsible for paying that order in full and cannot change your employment unless you are able to continue to pay the order in full.
If you are fired for cause, it will be very 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 not fired but laid off, 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.
All of this being said, I had a case years ago where my client had a child support order in effect from when he was the manager of a large department store. He lost that job and was only able to find a job at the manager of a much smaller department store for a significantly lower salary. Eventually he told me the truth. He lost the first job because he was convicted in thefts of goods in his store.
He was unable to get any comparable job because all the large department stores ran criminal record checks, while a few of the smaller stores did not. I advised my client to “come clear” to the support manager, and she was sympathetic and did grant a downward modification. However the mother was pro se and did not strongly object.
Drafting And Filing A Modification Petition
If you are going to e 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 modity the form.
. 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.