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Decades Of Litigation Experience

Do you have a right to seek a modification of child support?

by | Jan 25, 2021 | Family Law |

It depends. If you and the other parent have specifically opted out of Domestic Relations Law §240 )1-b)(h) in a written agreement, the Court will likely uphold your agreement and deny your request for a modification. However, if you have not waived this Statutory provision, you may file a motion (via Notice of Motion or Order to Show Cause in the Supreme Court) or petition (Family Court) seeking a Statutory modification of support based on any one or more of three (3) factors: (1) a substantial change in circumstances; (2) passage of three or more years since the child support order was entered, last modified, or adjusted; or (3) a parent’s income has increased or decreased by 15%.  See also Family Court Act § 451(3)(b).
Whether there has been a “substantial change in circumstances” is a factual determination to be made by the Court. With regard to the 15% change in income factor, any such change cannot be intentional, as a parent is expected to pay child support in line with their earning ability. Thus, if a payor is intentionally unemployed or underemployed, the Court will likely impute income to them for the purpose of determining whether the child support figure is just, equitable and proper.