How Can I Change a Child Support Order?
When and how to ask a court to change the amount of child support you must pay, or the amount you receive.
Many people these days are having trouble either making child support payments or caring for their children on their existing child support because of a change in their work or living situation. If you are paying or receiving child support, there may come a time when you feel the existing support order should be changed. How can you go about making that happen?
Parents Can Agree to Modify the Support
Your first step should be to see whether you and the other parent can reach agreement to modify the child support terms. If you can, you can just ask a judge to approve the change — that shouldn't be a problem unless the amount you agree to is way below guidelines. In that case you'll need to explain why the agreement is justified and how the amount agreed to will provide adequately for the children's support.
You Can Ask a Court to Modify the Support
If you and your ex can't agree on a change, you'll need to ask for a court hearing in which each of you can argue for the amount you think is appropriate. As a general rule in New York State, in order to get a modification you must be able to show a “substantial change of circumstances” since the court made the existing order. Depending on the nature of the changed circumstances, the court may make either a temporary or a permanent modification.
New York Court’s have the discretion to modify an order of child support if three years have passed since the order was issued or last modified, or if there has been a change in either party’s gross income by 15% or more since the order was issued or last modified. However, there are other situations which may convince a Court to modify a prior child support order. Some possible scenarios include:
- a child's medical emergency
- the payer's temporary inability to pay (for instance, because of illness or a temporary additional financial burden such as a medical emergency), or
- temporary financial or medical hardship on the part of the recipient parent.
- either parent loses a job or changes to a new job with significantly different income
- either parent remarries and the new spouse's income increases the household income significantly
- the cost of living increases
- either parent becomes disabled
- the child's needs change significantly, or
It should be noted that the Court will weigh all the facts and circumstances in a particular case to determine whether or not to modify existing child support.
If you're the paying spouse and you are unable to pay your support because you've lost your job or your income has dropped significantly, make sure you take steps right away to get the support amount changed. Any support payments that you don't make become what's called "arrears," and there's no way to make them go away other than paying them. They can't be discharged in bankruptcy, and they can't be reduced by a judge retroactively. If your ex won't agree quickly to a change, then you should immediately file a motion with the court. And if your ex does agree, get it in writing and have a judge approve it. If you don't, and your ex later has a change of heart, the original support order will apply and you'll be on the hook for whatever you didn't pay.
Providing for Ups and Downs in the Cost of Living
Some child support orders include a COLA clause, which provides that payments are to increase annually at a rate equal to the annual cost of living increase, as determined by an economic indicator (such as the Consumer Price Index). This eliminates the need for modification requests based solely on cost of living increases. If your child support order does not include a COLA clause, it may be a good idea to add one now.
Republished and edited with permission – Nolo.com