In New York, parents have an obligation to financially support their children. When a court issues a child support order, or reviews an agreement between parents that includes child support, the court first reviews the financial situation to ensure that the order makes sense for that family, at the time of the order, according to the law.
When the financial situation changes, however, there are certain conditions that allow a parent to return to court to ask that the order be modified. When asking the court to lower the amount of support, this is called a “downward modification” application.
Our attorneys are highly skilled in negotiation and litigation of downward modification. This process is very complicated but we can help you provided you meet the required criteria. We will also give you an honest and accurate assessment if a downward modification is attainable in your unique situation.
You are experiencing drastic and involuntary changes to your abilities to earn money, lost your job, business, were demoted or lost a significant part of your income and no longer can pay the financial obligations pursuant to a divorce judgement, agreement, or a court order, you have to ask the court for a downward modification of your prior obligations. These may include:
If the child support order stems from a written stipulation of settlement that has been incorporated into a divorce judgment, or has otherwise been signed as an order, you first must check the language of the stipulation – as long as you have not specifically opted out of the following, you can request that the court consider your application for downward modification when:
If you have specifically opted out of the above in your stipulation, or you do not meet either criteria, you can still ask the court to review your application if:
Most often, parents seek a modification of a support order when they have lost employment, or otherwise become unable to earn their previous salary. When that happens, the court looks at the situation to determine the reason the person has lost income, whether the loss of income is permanent, long-term, open-ended or temporary, and what efforts are being made to obtain new employment, unemployment benefits, or other sources of money.
If you are seeking to have your support obligation lowered because you have lost income, you must establish that the loss of income was not your fault or choice – for example, if you are fired for bad performance, or voluntarily quit, the court is not likely to grant your application. However, if you lose your income because of serious injury or illness, lay-offs that are beyond your control, downward trends in your industry, or necessary leave of absence, the court is more likely to consider your request. The court wants to know whether your loss of income was in your control or outside of it.
If you are able to prove to the court that your loss of income was outside of your control, you must then provide the court with an estimate of how long the situation will continue, and what efforts you are making to get back to your previous financial situation – or the reasons you are not able to look for new work.
In many instances, the other party may be willing to agree to a downward modification amicably and outside of court. This can be done through effective communication, negotiation and providing documentation to substantiate financial hardship and need for modification.
Our attorneys will draft, prepare and file a Motion For Downward Modification in court on your behalf. This motion must include clear analysis of your financial situation and lay out how your circumstances satisfy the required statutory factors and applicable case law. The motion sis very complex and must be prepared very carefully and meticulously in order for it to succeed. This motion is then filed in court and served on the other party, which will have an opportunity to put in their opposition. The court will then schedule a hearing on this application.
Downward modification is amicable negotiated and a modification agreement is presented to the court on consent of both parties for the judge to sign as a new order. If the matter proceeds through court, judge will make a decision if the statutory factors are satisfied by the moving party and render a decision, which then becomes the new order of the court.
Modification can be permanent or temporary and have additional conditions that must be satisfied.
Choosing the right divorce lawyer and family attorney to handle your case is the most important step in the process. We offer you an opportunity to meet our attorneys in person during a FREE consultation and gain confidence in our in-depth knowledge and abilities BEFORE you have to spend any money. We are also happy to provide you with a second opinion if you already have legal representation.
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