It is a few years or even a few months after your Long Island divorce attorney finalized your divorce and you find yourself in a much different financial position than you were when your judgment of divorce was entered. You may now be living paycheck to paycheck; you may have lost your job, or fallen ill or experienced some other life-changing event which has modified your income. You now find yourself unable to keep up with the Child Support payments a Nassau County or Suffolk County court originally ordered. You want to support your children, but you have questions such as:
- Do I have any recourse in the matter?
- Is there any way I can seek a downward modification of the order?
- Will my ex-spouse be able to bring a judgment against me when I am inevitably unable to pay?
On the other hand, as a custodial parent, you may feel that the amount agreed to by you and your ex-spouse is no longer adequately covering the needs of your children. They may be entering the age of sports and after school activities and they may need additional money to be able to participate. While your first avenue should be to speak to a Long Island divorce attorney, the following are some guidelines to educate you on what you may expect before that meeting.
Under What Situations Can Child Support be Modified?
- Substantial Change in Circumstances. This provision protects the non-custodial parent who may have fallen ill or is dealing with other unforeseen and unanticipated events that alters his or her ability to satisfy the child support obligation. It also protects the custodial parent who now cannot adequately provide for the children with the original support order due to his or her inability to work. In these instances, the party moving for the modification must show that his or her earning capability, and not in fact what he or she actually earns, makes it impossible to satisfy the order. Essentially this is a catch-all criterion for cases that do not meet either of the following two circumstances.
- Three Years Have Passed Since A Modification Was Requested. These grounds are pretty self-explanatory. If three years have passed since the child support order was entered, modified, or adjusted, you can file for a modification of that order. This allows for the opportunity for a modification solely on the passage of time and does not require a change in circumstances or income of either party.
- There Has Been a 15% Change in Your Income. If you are the non-custodial parent you may be reading this article and think to yourself that you can quit your job and work below your means in order to avoid any child support obligations. However, this is not a good idea. Naturally courts do not look favorably upon the active avoidance of responsibilities, and therefore, if you have voluntary quit or taken a lower paying job, it is unlikely your request for a downward modification will be granted. This provision is meant to protect the non-custodial parent who is fired from his or her job and can no longer make the payments through no fault or his or her own. The same theory is applicable to the custodial parent. Additionally, if the custodial parent is seeking an upward modification, he or she must show that the non-custodial parent’s income has increased by at least 15%.
What Can I Do to Strengthen My Case for Modification of Child Support?
While your Long Island divorce attorney will ultimately instruct you as to exactly what you need to prove your case for modification of child support, you may be able to make the process easier by keeping track of certain things beforehand. If you have lost your job and are unable to pay, keep copies of any correspondence with your former employer concerning the discharge, copies of all resumes and job applications you have sent out in an attempt to obtain new employment, and in the event you do obtain new employment you should save copies of your pay-stubs to prove what you are currently making.
If you are ill and unable to work, you should naturally save copies of any doctor’s letters that represent that fact and copies of prescriptions or anything else evidencing proof of your illness. Your case is always stronger when you can provide relevant documentation.
Need Help with Your Child Support Agreement?
The experienced and compassionate Long Island divorce attorneys at Robert E. Hornberger, Esq., PC firmly believe that parents need to take financial responsibility for their children. However, we also hate to see either party, custodial or non-custodial, taken advantage of by a child support agreement that is out of date with their financial situation today. We have helped many Long Islanders modify their Child Support agreements to ensure the children are taken care of without imposing an undue hardship on either parent. Contact us today at 631-923-1910 to learn how you can have your Child Support Agreement modified to protect your children, and yourself.
Check out our Divorce Guide for Dads for more information about divorce issues specifically related to fathers.