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Child Support Provisions

February 27, 2012

In October, 2010, the provisions of Section 236 (B)(7)(d) of the Domestic Relations Law, were enacted, granting parties the right to seek a modification of the child support provisions contained in an Agreement as incorporated into an Order or Judgment upon a showing of :

  • A substantial change in circumstances; or
  • That three (3) years have passed since the Order or Judgment was entered, last modified or adjusted or
  • There has been a chance in either party’s gross income by fifteen percent (15%) or more since the Order of Judgment was entered, last modified, or adjusted

The new law effectively introduced two (2) additional means of changing a child support order which did not previously exist, namely, showing an increase or decrease in a party’s gross income by fifteen percent (15%) or more and the passage of three (3) years from the date of the Order. Prior to October, 2010, if a party to a child support agreement incorporated into an Order or Judgment desired to have his/her support modified, he or she had to meet the hefty burden of showing that an unanticipated and unreasonable change in circumstances had occurred since the Order was entered. In the alternative, a party seeking an increase in support, could only be successful where he or she showed that the needs of the children were not being met under the present order.

Under the old law, the support magistrate or judge hearing the application to modify child support employed his or her discretion in determining whether the stringent threshold had been met. Obviously, the provisions of the new law, greatly reduce the likelihood that a support magistrate may improperly deny a modification of support since the changed circumstances are far easier to identify – the passage of three (3) years and/or the increase or decrease in a party’s gross income by fifteen percent (15%) or more.

While the statute does not specifically address situations where a party intentionally decreases his or her income by fifteen percent (15%) or more in order to decrease his or her support obligation, (e.g., by changing his or her compensation package at work or the like), the case law in New York state would suggest that the trial court would still have discretion to refuse to lower the prior support order and not reward the payor’s “bad behavior.”

Finally, the new law requires that the parties to a support agreement identify the new law and articulate that they are opting out, if they do not wish to be bound by the new modification provisions.