If you are seeking to modify your child support obligation, here are ten things you should know:
#1: The Burden of Proof
To obtain a modification, either downward or upward, the party seeking the modification has the burden of proof to show that there has been a substantial change in circumstances;
#2 What is a Substantial Change in Circumstances
There is no definitive definition of “substantial change in circumstances.” However, there are at least three good examples of what is a substantial change in circumstances, they are: (i) one or more of the children are now over the age of 21 years of age; and/or (ii) one or more of the children have now changed where they live; and/or (iii) one or more of the children have become emancipated by some other means. All three of those scenarios are discussed below.
If none of those scenarios exist, then in determining whether there has been a substantial change in circumstances, the court must consider several factors, such as: (i) The increased needs of the children; (ii) The increased cost of living insofar as it results in greater expenses for the children; (iii) If applicable: The loss of income or assets by a parent; (iv) If applicable: The substantial improvement in the financial condition of a parent; and (v) The current and prior lifestyles of the children.
In essence, the Court is to measure and compare the parties’ financial situation at the time of the modification request versus the time that the Child Support Order was originally issued.
#3 Child is Over the Age of 21
This is usually a simple yes or no question. However, sometimes especially when there are more than one child and also in situations with a child who has “special needs”, there might be exceptions. When there are more than one child and one child has now turned 21 years old, it should be easy to get a downward modification of your child support obligation. However, if a child is over 21 years of age and has special needs, then New York allows you to petition the Court to extend child support until the child turns 26 years of age.
#4 Child You are Paying Support for Now Lives with You
If you are paying child support for Child “X” and that child moves in with you, then you can qualify to get a downward modification of child support (to Zero dollars, if that is the only child). When going to Court, you will need to demonstrate that the Child actually has moved in with you. This can be done by various methods depending on the age of the child.
#5 Other Ways a Child Becomes Emancipated
In addition to turning 21 years of age, a child can become emancipated by at least two other ways: (i) they are now “economically independent” of both parents; or (ii) they have joined a military service. To demonstrate “economic independence”, you have to show: (i) that the child is to living outside both parent’s household; (ii) the child receives no financial help from both parents; and (iii) the child earns enough income their own employment to be sufficiently independent.
Also, if the child has joined any of the Military Services (Army, Navy, etc.), then that will also qualify as emancipation.
#6 Losing One’s Job is Usually Not Enough
Losing one’s job, by itself, is almost never sufficient to establish a “substantial change in circumstances.” In those situations, you also have to show at least two other facts: (i) that the loss of employment was through no fault of hie or how own; and (ii) that you have made diligent attempts to secure employment that is commensurate with your education, ability and experience.
#7 You Must Be Believable
If you are making a request for a modification, then each party’s account of their current finances must be “credible” (believable). Otherwise, a court can impute income to that party. This typically means if a person is working “off the books” and is stating income that looks to be much less than what they probably are earning, that the Court can determine that they make much more money than what is reported.
#8 Court is To Look at Both Parent’s Incomes
The Court is supposed to look at both parent’s incomes and their respective change in incomes. For example, a recent case stated that although the Father failed to establish that his income decreased, the support magistrate did not take into account that the Mother’s income had substantially increase. See Baumgardner v. Baumgardner, 126 A.D.3d 895 (2nd Dept. 2015)
#9 Appeals Take a Long Time and are Rarely Granted
Most requests for a modification are first heard by a Support Magistrate in a Family Court setting. Regardless of whether it is a Support Magistrate or some other Judge that either grants or denies a modification request, an appeal of that order will take a very long time. It can take up to two years for an appeal to be granted (or denied). Furthermore, most lower court decisions are upheld.
#10 Special Contract Cases
In some divorces or child support agreement, the agreement (usually called the Stipulation of Settlement) may contain a special contract clause regarding the future modification of child support. For example, in one case involving a Professional Football player, the agreement specifically stated that once the father stopped playing professional football that his child support obligation would be reduced. In another case, the agreement covered three children and stated that the father would pay the same amount of child support even after the oldest child turned 21 years of age. In interpreting an agreement, the Court will read any unambiguous clauses and hold the parties to their prior agreements. So, if your agreement does have a special clause regarding child support, it is important that you make certain that the Support Magistrate is aware of this clause.
When you are seeking a modification to your child support, there is a lot you need to know. You need an experienced child support attorney to help you in your child support matter. David Badanes and the Badanes Law Office, P.C. have helped numerous clients in their child support modification matters. If you are seeking modification of your child support, then call David Badanes and the Badanes Law Office at 631-239-1702, email at email@example.com or visit our web site: www.dbnylaw.com. The Badanes Law Office has offices in Suffolk County (Northport) and in Nassau County (Uniondale, across from the Nassau Coliseum).
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