Generally, there are three (3) grounds to modify a prior order of child support: (1) a showing of a substantial change in circumstances, (2) the passage of three (3) years since the order was entered, last modified or adjusted, or (3) a change in either party’s gross income by fifteen percent (15%) or more since the order was entered. This post will address each of these three (3) grounds and give you a brief explanation of your rights under the law.
Ground #1 – Substantial Change in Circumstances
One ground to seeking a modification is based upon a showing of a substantial change in circumstance. Here, a court will generally consider certain factors to determine whether there has been a change of circumstances warranting an upward or downward modification of child support. For example, when seeking an upward modification of child support the court may consider the increased needs of the children, the increased cost of living if it results in greater expenses for the children, a substantial improvement of a party’s financial condition, and the current and prior lifestyles of the children. When seeking a downward modification of child support the court may consider a loss of income by either parent, or an increase in income of the party receiving child support (payee’s income) which may result in a lower child support figure for the party paying child support (payor).
Loss of Employment Must Be Involuntary and Diligent Efforts to Secure Employment Are Required
Many times a party will argue for a downward modification of child support based upon a reduction in their income based upon their loss of employment. However, loss of employment will only be considered a ground for modification if it was involuntary and the party has made diligent attempts to secure employment commensurate with his or her education, ability, and experience.
Grounds #2 and #3 – Passage of Three Years & Change in Gross Income by 15%
A party can also seek to modify a child support order upward or downward based upon the passage of three (3) years or a change in either party’s gross income by fifteen percent (15%), so long as you did not expressly opt out of these statutory provisions in your agreement. In other words, if you are entering into a divorce agreement with your spouse and you would like to preserve your rights to seek a modification of child support based upon the passage of three (3) years or a change in either party’s gross income by fifteen percent (15%) be sure that your agreement includes language which preserves your rights to a modification on these grounds.
If you believe you may be entitled to a modification of child support, you should seek advice from an experienced attorney. The material in this blog is meant only to provide general information and is not a substitute nor is it legal advice to you. Readers of this article should seek specific legal advice from legal counsel of their choice. Samantha Guido may be reached at 516-393-8250 or sguido@jaspanllp.com.