Modifying Child Support And Custody Agreements
It is often necessary to modify the terms of an existing child support, child custody or alimony/maintenance agreement to reflect the ever-changing lives and circumstances of the parties involved. In order for the court to grant a modification, however, a number of steps must be taken by the petitioning party. To ensure your modification request is handled skillfully and successfully, it is extremely important to consult the services of an experienced lawyer to effectively represent your rights.
The Law Offices of David Bliven can help.
The Law As It Pertains To Modifications
To successfully obtain a post-divorce modification, certain requirements must be met. Most importantly, the petitioning party must prove to the court that they have undergone a substantial change in circumstances, warranting the need for a modification of terms. Loss of employment, a substantial increase or decrease of income, or another major life change can all be considered reason for a significant change in circumstances. The following divorce-related issues may be modified in post-divorce decree:
- Child support
- Child custody
- Child visitation
Very recently, New York child support law was reformed to include an automatic modification of child support once every three years. If you or your child has experienced a life change that has produced a significant effect on your lives, you may request that a modification be made.
Don’t delay on Custody Modification
If circumstances change, and there is a basis to file for a change of custody, don’t delay – or else Judge may think you’ve acceded to the situation.
Here’s an example: A potential client comes into the lawyer’s office, informing that the child wasn’t happy living with her father, and often was passed off to the paternal grandmother to stay with. The situation had already persisted for a few months like that. She was advised her to file for a change of custody right away. The longer the situation persists, the more the Judge will think the non-custodial parent was o.k. with the situation – or at least didn’t feel it was enough to bring to the Judge’s attention.
That said, you should make sure before filing that the circumstances do indeed establish a likelihood the Judge will change custody. As such, sit down at a consultation appointment with an experienced child custody lawyer. Some people come to an attorney saying they’ve already filed for a change of custody – and then ask whether they have a basis to do so or not (usually phrased as: “do you think I have a good case?”). This discussion should occur before you file!
I lost my job – how do I modify child support?
Especially since the ’08 financial crash, many people have lost their job. However, don’t assume your child support order will automatically go down.
In NY, one only gets relief retroactive to the date of filing, so if you lose your job, file a petition for modification right away. You cannot get a modification if you either voluntarily quit or are fired due to misconduct.
On your petition, you have the burden of proving you lost your job thru no fault of your own. Thus, you must produce a notarized letter from your ex-employer confirming you were laid off, or other similar proof. You must ALSO prove you’re making a diligent job search. You can generally only prove this by submitting a job search diary, comprising printouts & recordings of all your efforts to find work commensurate with your prior earnings. You should be aware that if you’re completely out-of-work, the Court will generally require 30-40+ efforts per week. If you’re working part-time, this may be reduced depending on your hours to 10-30 efforts per week.
Ex-Spouse in violation of Divorce Judgment or Agreement – what to do?
Many people don’t consider the steps which need to be taken to enforce a violation of a divorce decree – and thus make mistakes in the process.
Many settlement agreements have default notice provisions contained within them. In other words, if you wish to allege your ex-spouse violated the agreement, you must first send them an itemized notice of their violation(s). Most such default notice provisions require same to be sent via certified mail, return receipt requested, or via UPS/FEDEX. If you fail to do so, there’s the possibility your violation application will be dismissed. Moreover, if you send the default notice, this sets up a counsel fee application even better, as then you can argue the other party had a chance to remedy the violation.
Have the full agreement reviewed by your potential attorney, so s/he can go over with you whether you are in “substantial compliance” with each provision yourself. I have had many potential clients who wish to, for instance, sue for back child support, while they are violating one or more terms of the joint custody arrangement.
We Can Help
At the Law Offices of David Bliven, we understand that life doesn’t stand still. The needs of you and your child are constantly changing and evolving, and we are here to help ensure that your divorce agreement reflects those changes. To speak with us about your case, call (914) 468-0968, or contact us online.