New regs make it easier to modify child support

Joseph Trotti, Esq. jtrotti@vmmlegal.com

Attorney Joseph Trotti has represented clients whose incomes decreased by $20,000 or $30,000, making it more difficult for them to pay child support as outlined intheir divorce agreements. In the past, when clients in that situation inquired about seeking a modification from the court, Trotti would have advised them that they were wasting their time. Now, things are different, said Trotti, who is a partner with a concentration in matrimonial and family law for Vishnick McGovern Milizio in Lake Success.   

Effective last October, the New York Legislature changed regulations regarding the modification of new child support agreements or orders. Now, in order to file for upward or downward modification of support, the party seeking the modification only has to prove a substantial change in circumstances, rather than the previous "unanticipated and unreasonable change in circumstances," which carried a much higher burden. Parties now can also seek modification if three years have passed since the order was entered, last modified or adjusted, or there has been a change in either party's gross income by 15 percent or more.   

"Prior to the change, people were able to depend on the sanctity of the agreement, except in the case of extreme circumstances," said Jerome A. Wisselman, founding partner of Wisselman, Harounian & Associates in Great Neck, which has a focus in matrimonial and family law. "Now, there is a much lower threshold for seeking modifications."

New law, more work

By virtue of these changes to the law, the number of modification cases heard is guaranteed to increase, Trotti said. For instance, career changers who take a $30,000 pay cut to start at a lower level and then move up the ladder, can now request a downward modification in their support obligations. "The change in income wouldn't be considered unanticipated, since it was a choice, but in many cases it's a substantial change," Trotti said.   

Custodial parents, too, and their children may benefit from the new law in cases where the noncustodial parent has seen a sharp rise in income due to promotions.

What was the impetus to overhaul time-honored regulations? Lloyd C. Rosen, an associate at Wisselman, Harounian & Associates who practices in the area of matrimonial and family law, said changes to the law likely resulted from the sluggish economy. "A lot of people were living according to agreements that they signed at the height of the economy, when they had greater income, assets and equity in their homes," Rosen said. "They did not foresee the countrywide recession that would follow, and many people have gone to court seeking modification, which the Legislature acted to address."   

Courts declare no free ride

But despite the recession, courts have tended not to modify too freely, even in cases of economic difficulties, Wisselman said. As Trotti noted, in cases where individuals lost jobs because they didn't show up for work, the courts won't reward them with a downward modification. Additionally, the courts haven't looked too kindly on professionals that are underemployed, such as accountants working as clerks and claiming they can't afford to pay child support, said David L. Mejias, managing partner of Mejias Milgrim & Alvarado of Glen Cove and Hempstead, with a focus on family law. "The court will look at how much money the individual should be making," he said.   

However, in the current economy, it's not uncommon for individuals to lose their job through no fault of their own, particularly in certain industries. "I have a case in which a gentleman with a high school degree has worked as a mortgage broker for 20 years," Mejias said. "He lost his job and went from making $200,000 to nothing. There has been a substantial change in circumstances that has impacted his ability to make a living."   

More than just about the bucks

Not all substantial changes in circumstances are financial. In some cases, teenagers want to go to live with the noncustodial parent. "The court takes older children's wishes into consideration," Mejias said. He citied a case he's involved in where the child is graduating from high school, plans to attend college locally and will start living with his father, who is currently responsible for paying child support.   

"The father is going to court to request a downward modification since the child will now be living with him," said Mejias, noting that in such cases the noncustodial parent may even seek child support from the other parent. Generally, child support must be paid until the child reaches the age of 21, Mejias said.

It remains to be seen how the courts will rule on modifications in light of the change. "The new law just made it easier for a petition requesting modification to be heard," Rosen said. "It didn't change the court's discretion in deciding which agreements or orders to modify."   

However, Rosen feels it will prove easier for petitioners to get a modification. "I believe the courts will interpret the change in the wording to 'substantial change' as license to grant modifications under less stringent circumstances," he said.

With new agreements, both parties can agree to opt out of the new law, which Wisselman is generally advising his clients to do. "There's a lot of give and take involved in arriving at an agreement, and people often want certainty," he said.