MODIFICATION OF CHILD SUPPORT AFTER A DIVORCE IN NASSAU COUNTY
Assuming that no provisions for upwardly or downwardly modifying child support were built into a divorce settlement agreement or a separation agreement, and further assuming that the parents are unwilling to negotiate to resolve this issue, the parent seeking the child support modification is left to seek assistance from the Court. Both the Supreme Court and Family Court will have jurisdiction to hear and determine this issue. When a parent asks the Court to award a modification of child support, whether up or down, the party seeking that modification has the burden of proving that a “substantial change of circumstances” has occurred since the last child support order was issued. This, in divorce cases, is generally the Judgment of Divorce itself. The burden of proof on the party seeking the modification is to show that the substantial change of circumstances since the date of the last child support order was issued, now makes the current amount being paid or receiving, unjust and inappropriate. The case law in New York dominates what the Courts will look at when determining whether in fact, a substantial change of circumstances has occurred. Some avenues to assess may be new medical needs for a child, a substantial change in either parent’s income including for example, either parent’s loss of a job which did not occur for cause, a substantial increase in either parent’s income, either parent becoming seriously ill or disabled and quite commonly, especially when a child becomes old enough to decide with which parent she would desire to live with most of the time and decides to and actually moves from the former residential custodial parent’s house (the payee of the child support) to the other parent’s (the payor of child support) house, then, a substantial change in circumstances would most likely be found to have occurred by the Court. Once this finding has been made by the Court, the Court then has the basis upon which to Order a modification. The parties will have submitted evidence to the Court including financial statements, tax returns, pay stubs, possible medical proof of illness or disabilities, or other indicia supporting the changed circumstances. One common serious mistake that a parent who is under an Order to pay child support must not make is to self-adjust child support to what he or she thinks is “fair” or that payor parent determines that he or she is able to pay. Any deviation from the then currently ordered amount of child support is a violation of the existing Court Order and that person could be held in contempt of court. That would result in possible fines, loss of driver and professional licenses and even incarceration. The lesson here is that one should never rely on “self-help remedies” but instead, respect the authority and power of the Court and bring the appropriate application before the Court and then wait for the Court to make a decision. As the law concerning modifications of child support orders is very complex, retaining a qualified divorce/family law attorney to first assess if a substantial change of circumstances may exist and if so, prepare the necessary petition or motion and then represent you in Court.
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DISCLAIMER: This article is intended to provide only general information for entertainment purposes and should never be relied upon as legal advice. One should seek the assistance of experienced matrimonial counsel to assist in explaining the law, options and making important decisions in any divorce, matrimonial or any family law matter. By reading this article, no attorney/client relationship arises in any manner whatsoever.