Virtually any type of order can be modified in one way or another. Typical family court orders are orders of custody, visitation, child support and spousal support (otherwise known as spousal maintenance or Alimony). Those are the typical types of orders that will be modified. Moreover, the terms of an order of protection can be modified. Very rarely will you see modifications of divorce judgments, at least in regards to asset or debt distribution. Usually, those are quite set in stone.
What Is A Change in Circumstance the For Purpose of a Modification of Child Support?
Generally, the requirements for a change in circumstances is determined by statute and the change of circumstances within the statute is considered a 15% change of income by either party. The statute also provides for child support to be modifiable once every three years. There is the ability to modify based on a substantial change of circumstances and that could be a variety of other things, such as a change of custody. Someone could have a change of another type, such as a loss of a house, which may warrant additional support. A drastic increase of access time can be an arguable basis for modification of child support. The parties may also “opt-out” of these modification standards by executing an agreement changing the modification standards.
What Is A Change for The Purposes of a Modification of Child Custody?
Changes of circumstances for the purpose of child custody would include the child having been abused or neglected by the custodial parent, domestic violence occurring in the home, or interference with the visitation rights of the non-custodial parent. They may also include, depending on the age of the child, the child expressing a preference to stay with the non-custodial parent more often or some type of change on the non-custodial parent’s end which would warrant them getting custody that did not exist at of the time of the initial custody determination or settlement. This is certainly not an exhaustive list and the overall standard remains the same: is the purported modification in “the best interests of the child?”
Are There Any Risks Involved on The Side of The Person Asking for A Change When It Comes to Family Law Matters?
If you file a modification petition, the other side can file a counter-petition to modify or enforce any given order. For example, a custodial parent may file a petition to increase child support and then the non-custodial parent will counter asking to modify visitation by asking for more time.
How Do I Go About Changing an Order In New York?
If you are looking to change a child support or child custody order, you need to file a petition with the family court. If there are intertwined issues of finances and custody or access, then you’re better off filing an order to show cause in the supreme court where the divorce case was had.
Can I Change A Child Support or Child Custody Order Temporarily?
The way you would change child support, even temporarily, would be to file a modification petition (though one may also file an order to show cause in Supreme Court). If circumstances then revert such that you no longer need the modification, you can always report that to the other parent or go back to court.
Does a Temporary Order Also Present the Risk of a Counter-Petition?
If you agree to the other parent having additional access time, for example, and they start having that for any length of time, they may decide that they want to keep that amount of time. They can then ask the court to make the change permanent.
Is There A Way to Modify A Child Support or Custody Order Without Having to Go Before A Judge?
Under New York state law, if you are going to modify a court order, the only way to do that is to go before a Judge. It does not mean the parties cannot work out a settlement before going into the court hearing – they can and can even reduce that to a written settlement agreement. However, to modify that order, you have to go in before a Judge, Referee or Child Support Magistrate and get the Court to enter an order based on the settlement agreement.
I Am Returning to Active Military Duty and My Income Will Change. Do I Need to Make Any Changes in My Child Support, Alimony, Or Spousal Support Orders?
If your income is going to substantially change, you should go to court and seek to modify those support orders. If you don’t, you will build up arrears and you are going to have to pay off those arrears.
I Lost My Job and My New Job Pays Less Than My Previous Employer. Will my Child Support Order Change to Match my New Income?
First, you would need to prove that you lost your job through no fault of your own. The second burden you have is to prove is that you made a diligent job search for a job that would pay in the range of what you were formally making and therefore, the new job that you got is the best job that you could realistically get under the circumstances. That job search does not get proven by your say so – you have to produce written evidence of your efforts to find work that is commensurate with your prior earnings, work history, and educational level.
Will Child Support Be Taken Out of My Unemployment Benefits? If So, How Is This Amount Determined?
Unemployment is considered a source of income, so child support will be taken out, unless you file a downward modification petition and it is granted. Whatever the order amount is can be taken out of your unemployment benefits.
I’m Hoping I’ll Be Able to Obtain A New Job That Pays Close to What I Previously Made. Can My Child Support Be Temporarily Lowered While I’m Looking for Employment?
You would need to file a downward modification petition with the family court and get the court to lower the support order while you’re looking for a new work. You are going to have to prove that you lost your last job through no fault of your own and keep a job search diary documenting your diligent effort to find new work.
I’m Only Able to Obtain Part-Time Work Right Now. Can My Child Support Order Be Set Based on Part-Time Wages?
Usually, if you are only earning part-time income and you were previously earning full-time income, you will be required to either apply for unemployment to make up the difference or the court will simply base the order on a proration of your full-time projected earnings. Even then, however, you will need to still prove you lost your last job thru no fault of your own & you’re making a diligent search to find full-time work at commensurate income.
Is There Any Way That My Child Support Amount Could Go Up If I Request A Modification?
If you are the custodial parent and you are requesting an upward modification of child support & you prove your case, then child support can go up. On the other hand, if you are the non-custodial parent and you file a downward modification petition – and there is no petition on the other side asking for an increase – then the Magistrate cannot increase child support. If you file a downward modification petition and the other side files a counter-petition to increase child support, there is at least the potential that support could increase.
I Live In New York And the Custodial Parent Lives in Another State. How Do I File for A Modification in This Situation?
If the initial support order was done in New York and you continue to live in New York – but the custodial parent has moved out of state – then your modification petition should be filed in New York. If the initial court order was done outside of New York, then you need to file either in that initial issuing state – or if no one lives in that state then you’d need to file in the state where the custodial parent now lives.
How Long Does It Take for A Child Support or Child Custody Modification to Go into Effect?
During the COVID-19 pandemic, court times are largely unpredictable. It depends on the county and the circumstances. If it is not an emergency, the courts outside NYC are tending to take about two to three months to schedule an initial court hearing (as of this writing in early September, 2020).
Can My New Spouse’s Income Affect My Child Support Payments?
A current spouse’s income will really only come into play if that current spouse is supporting you because you are choosing not to work. Then, it could be argued that the current spouse’s income should play a role in the overall support calculation.
When Might an Alimony or Spousal Maintenance Agreement Be Modified In New York?
If the order was pursuant to a settlement agreement and the settlement agreement does not say otherwise, then the standard to change spousal maintenance or alimony is an “unanticipated change of circumstances.” It is very hard to change alimony or spousal support under those circumstances, unless your agreement says otherwise. You cannot raise or lower the amount of spousal support or maintenance unless you satisfy the “unanticipated change of circumstances” standard.
If the spousal support is merely pursuant to a court order or a divorce judgment, then the court looks at a variety of factors and the standard is much lower: a “substantial change of circumstances.” That can include many different things, such as the current order poses an “undue financial hardship” to a party. If there is any type of anticipation a party could have a substantial increase or decrease of income during the period the alimony or maintenance is paid, it is recommended that same be captured in the settlement agreement.
Will Cohabitation or Remarriage Impact My Alimony at All In New York?
Remarriage definitely will affect alimony on the part of the recipient. The person paying alimony or maintenance can get remarried as doing so won’t change their obligation. If the recipient gets remarried, however, that automatically terminates maintenance – though one would need to go into court on that application. The issue of cohabitation is determined by whether there is a settlement agreement or a mere court order or a divorce judgment (i.e., one which does not incorporate a written agreement). If there is a settlement agreement, then that issue is driven by the terms of that settlement agreement. If it is a mere court order or a divorce judgment, then it is driven by statute and the statute states that if the person starts “habitually living” with another person and holds themselves out as husband and wife, then conceivably alimony or spousal maintenance can be modified.
For more information on Family Law 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.
Call Now To Schedule A 20-minute Case Assessment
Or Full 50-minute Case Strategy Consultation!
(347) 797-1188 | (914) 362-3080