When Things Change - Part II: Child Support

{3:36 minutes to read}  New York enacted a statute several years ago to put some clarity into the process of modifying child support. The statute provides that there are three bases for a party to ask a Court to modify support:

(1) a substantial change in circumstances;

(2) the passage of three years since the last order or modification; or

(3) that a party’s income has changed by 15% or more since the last order or modification.

In a separation agreement, the parties must decide whether they want to opt-out of the applications of (2) and (3) or have them apply to any modification petitions they may file in Court.

Of course, in mediation, we do not expect parties to petition the court for a modification; any changes will be spelled out in the agreement. To the extent that they cannot be determined, the parties would go to mediation first, and go to court only as a last resort.

Normally, we want to address every possible contingency in an agreement, but there are some things that would be too convoluted or time consuming to try to predict. Others would be so unlikely to happen that it would not be cost effective to fully address them at the time that the parties are making the separation agreement.

For example:

• If someone is in a tenuous employment situation, and it is likely that there could be a change in income, it then makes sense to spell out what will happen, such as a recalculation of support by the CSSA.

• But what if that person is older, and he or she may not be able to get another job in the same field or may experience a long period of unemployment or under-employment? Obviously the needs of the children must still be met, but in those situations, it could be more equitable to reassess completely – look at both parties’ incomes, expenses and even assets to determine how best to insure support for the children.

• Maybe there has been a remarriage, and so the expenses of the payor spouse or the payee spouse are greatly diminished, making more income available for support.

• With an older person it might make sense to look at retirement assets for support.

• If child care is being used by the custodial parent and the other parent is temporarily out of work, that person could assume the child caring role.

The point is that when change occurs, there can be creative solutions available, even though those solutions are not readily apparent when the agreement is signed. You can always use mediation to brainstorm resolutions that will work for both of you and the children.