In 2010, Section 451 of the Family Court Act was amended to provide parties with an entitlement to a review of their child support obligations every three years or upon a 15% change in income. This is supplemental to the general rule that child support may be modified, upward or downward, upon a showing of a substantial change in circumstances. When determining whether a change in circumstances warranting a modification in a child support obligation has occurred, courts must consider several factors, including but not limited to, a loss of income or assets by a parent or a substantial improvement in the financial condition of a parent, and the current and prior lifestyles of the children. McKinney's Family Court Act § 451(2)(a).
Prior to the 2010 Amendment, pursuant to the Court of Appeals decision in Boden v. Boden, 42 N.Y.2d 210, 397 N.Y.S.2d 701, 366 N.E.2d 791 (1977), the Petitioner bore the burden of proving an unreasonable and unanticipated change in circumstances in order to be successful when seeking modification of an Order of Support or Agreement. The same rule generally holds true for an Agreement or Stipulation that was incorporated into an Order of Support prior to 2010 that was entered into prior to 2010. The legislative intent of the statutory amendment in 2010, was not to alter existing case law regarding the standard for modifications of orders incorporating but not merging separation agreements…rather, to codify grounds for modification. For Orders modifiable after the passage of three years or upon a 15% change in income a substantial change in circumstances is somewhat irrelevant. Although the 15% rule memorializes what the usual and customary practice had been historically, in that, a change in income of 15% or more, is generally deemed to be a substantial change in circumstances.
Since child support orders are generally effective until the child attains age 21, it is to be expected that Child Support Orders will be routinely modified throughout the years.
Importantly, in determining if there is a substantial change in circumstances to justify a downward modification, the change is measured by comparing the payor's financial circumstances at the time of the motion for downward modification and at the time of the divorce or the time when the order sought to be modified was made ( Klapper v. Klapper, 611 N.Y.S.2d 657).
In addition to changes in income, there are other reasons that modification of an Order of Support would be necessary and proper. A change in custody or the emancipation of a child may also be deemed a substantial change of circumstances to warrant modification of child support. Obviously if a non-custodial parent has become a primary custodial parent, because the child has come to spend more than 50% percent of his or her time with the parent previously deemed to be the non-custodial parent for support purposes, a request for modification of child support may be prudent. Likewise, should a child reach the age of 21, or otherwise be deemed to have become emancipated, modification must also be sought in order to vacate the Order of Support for that child. An Order of Support will not terminate on its own, absent the proper application, and it will remain in full force and effect until such time as it has been effectively vacated by the Court, despite the child’s age.
As with all financial obligations, knowledge and awareness of your rights and responsibilities is crucial, and a proactive stance should always be taken to ensure equity, compliance and reasonable fairness. Our firm can help you pursue your desired outcome and protect your rights along the way - call our Dutchess County divorce attorney today to get started.