In this article you will learn about:
- What the laws surrounding an upward modification of support are in New York.
- The main reasons why the court considers an upward modification of support.
- What steps to take when applying for an upward modification of support in New York.
What Is An Upward Modification Of Support In New York?
An upward modification of support is asking the court to raise the amount of child support, which is almost always done by the custodial parent. The degree of difficulty in getting an upward modification depends on whether a divorce settlement agreement exists and when it was set. If it was set before 2010 (& unless the divorce settlement agreement says otherwise), the standard is an “unanticipated change of circumstances.” This means you would be extremely unlikely to get any change at all for the life of the case. If this was not stated in the settlement, or if your agreement was not done before 2010, then the regular modification standards would apply. The regular modification standards would also apply to agreements that do not specifically opt-out of the statutory standard (post-2010 amendment to the law).
In 2010, when the legislature modified the child support laws, they specifically said that any agreement must state whether it is opting out of the statutory standards to modify child support. If your agreement doesn’t specifically address this issue, then the statutory standards apply. The statutory modification standard are:
- It’s been more than three years since the child support was set or last modified
- A change in either parent’s income by 15%, or
- Some other substantial changes of circumstances.
If the custodial parent seeking a raise in child support has satisfied one of those standards, the court would process the case like a regular child support calculation. The custodial parent would then have mandatory disclosure regarding their basis to raise child support, and the non-custodial parent would likewise have to put in their mandatory disclosure. These are financial disclosure affidavits (link to the form here: https://www.nycourts.gov/LegacyPDFS/FORMS/familycourt/pdfs/4-17.pdf), which include details such as last filed tax returns and pay stubs. Then the court would do a recalculation of the child support and reset the child support in accordance with the statutory standards.
What Are Legitimate Reasons A Court Will Consider An Upward Modification Of Support?
Per the statutory standards (again, post-2010 statute amendment), there must have been more than three years since the support was last set, or either parent’s income must have changed by 15%. Additionally, the scenarios where expenses have gone up for the children are contributing factors. Consider a situation where the child support calculation was set when the child was six years old, and now 10 years have gone by and that child is now sixteen years old. If that’s the case, presumably teenagers are more expensive than younger kids, and the custodial parent may want a raise in child support. If the support agreement says the custodial parent can’t raise child support after 3 years, this is a case where there has been a substantial change of circumstances, which is a legitimate reason for the court to consider upward modification of support.
If this happens, you must prove what your expenses were when child support was originally set, and what your expenses are now. Proving these added expenses involves showing bills and receipts for both time periods in order to display the change. In many cases, a financial disclosure affidavit or net worth statement is available from the initial child support agreement, and can be used as evidence proving your past expenses (especially helpful if the support was last set or adjusted many years ago & it’s difficult to obtain, say, utility bills from 5+ years ago). If this is not the case, you must prove those original expenses with specific bills and receipts.
How Do I Apply For An Upward Modification Of Support In New York Family Court?
The non-custodial parent would apply for a downward modification by going to nycourts.gov, following the link to family, and then to child support forms (link here: http://ww2.nycourts.gov/forms/familycourt/childsupport.shtml). There you will find the modification form, which is a standard form and applicable for both upward and downward modification. After completing this form, it is recommended that you consult with a family law attorney to make sure that the form is completed correctly, and then it would be filed in the EDDS system at the family court (link here: https://iappscontent.courts.state.ny.us/NYSCEF/live/edds.htm). If you are filing in the Supreme Court, then you would do it by order to show cause – which is not done in a family court petition.
For more information on Upward Modification of Support In New York, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (347) 797-1188 | (914) 362-3080 today.