So your client has a child support order, but it has been several years since the amount has been changed. In the past modifying these orders has required a showing of need that has been difficult to overcome without a showing of unanticipated and unreasonable change in circumstances. While this difficult standard of modification still exists for support orders predating October 13, 2010, recent changes in the Family Court Act and the Domestic Relations Law, now allow the court to modify new orders of child support simply upon showing a “substantial change in circumstances.” Also, there are now two new bases for a modification. The court may modify an order of child support where either: (1) three years have passed since the last order was entered; or (2) where there has been a change in the gross income of either party by fifteen percent or more, since the last order was entered. These modification options also apply to awards of child support that are incorporated into a divorce by way of a separation agreement or stipulation.
Again, these new amendments only apply to orders or Judgments of Divorce that were entered on or after their effective date of October 13, 2010. So if a Judgment of Divorce incorporates a preexisting Separation Agreement or stipulation, the new modification terms only apply if that agreement or stipulation was signed by the parties on or after the October 13, 2010 effective date, and the agreement or stipulation did not include language which specifically “opts out” of the new statutory amendments.
Practically speaking, clients should be advised as to whether any existing agreement they have addresses the issue of a modification of child support. If the language “opting out” of this new statute is not included then it is presumed not waived and either party to the order has the ability to request a modification upon one of these new bases. In contrast, the Child Support Standards Act (CSSA), which provides a formula to presumptively calculate the “basic child support obligation,” requires the parties to affirmatively acknowledge any waiver by including a provision within any agreement or stipulation that the parties were advised of the specific provisions of the CSSA and specifically chose to “opt out” of those provisions.
The new statute, (provided in the amendments to the Family Court Act §451 and Domestic Relations Law §236[B](9)(b)), has a technical requirement for all orders entered after the effective date. These orders are required to provide:
“a notice printed or typewritten in a size equal to at least eight point bold type informing the parties of their right to seek a modification of the child support upon a showing of: (i) a substantial change in circumstances; or (ii) that three years have passed since the order was entered, last modified or adjusted; or (iii) there has been a change in either party’s gross income by fifteen percent or more since the order was entered, last modified or adjusted; however, if the parties have specifically opted out of subparagraph (ii) or (iii) of this paragraph in a validly executed agreement or stipulation, then that basis to seek modification does not apply.”
These amendments are of significant help to the client who is requesting a modification of a child support order, especially when one party has a notable increase or decrease in income. However, clients should keep in mind that when petitioning for a downward modification of child support, simply showing a reduction of income is not an automatic ground for modification. The party requesting the reduction of child support is still required to show the reduction of income was involuntary and they must demonstrate diligent efforts to try to secure new employment.