POST-DIVORCE MODIFICATION OF CHILD SUPPORT

During this pandemic and COVID-19, many divorced or separated couples have requested modification of their child support orders pursuant to their divorce agreement or Family Court court orders. However, asking a judge or a support magistrate to make such changes is fraught with uncertainty as access to the courts are limited and the court’s discretion in modifying such orders are often constrained by statute and case law.

Recently, I represented a former husband in the Appellate Division Second Department where the appellate court affirmed the decision of the Family Court modifying my client’s child support order and granted his upward modification of his child support petition against his former wife (In the Matter of A.W.K. v. C.T.C., 2d Dept. Dec. 23.2020, abbreviated for privacy purposes) My client also was awarded an award of costs for his fees expended in pursuing this expensive appeal.

The appellate court held,” the father was not obligated to demonstrate a substantial and unanticipated change in circumstances resulting in a concomitant need, as the parties’ stipulation regarding child support was executed after the effective date of the 2010 amendments to Domestic Relations Law §236(B) and Family Court Act §451 (case citations omitted).” Further, “because the parties did not opt out of the provisions of Family Court Act §451(3)(b), the father was not obligated to demonstrate a substantial change of circumstances (see Family Ct Act §451[3][a]), where as here, he had demonstrated that three years had passed since the last order concerning child support was entered (see Family Court Act §451[3][b][i]). Moreover, the father also demonstrated that the mother’s gross income had increased by 15% or more during that time (see Family Court Act §451[3][b][ii]).”

Based on this decision, the parties could have saved a lot of time and money if they had chosen to mediate the parent’s request for a modification of child support.

If you would like to explore the idea of mediating your outstanding child support issues please reach out to Helene Bernstein at the Law and Mediation Office of Helene Bernstein, PLLC. Helene can be reached at [email protected]

BY: Helene Bernstein, Esq. of the Law and Mediation Office of Helene Bernstein, PPLC Attorney Blogs may be considered Attorney Advertising. Prior results do not guarantee future results in any other case.