One might think that if they come to a settlement in their divorce case in which they agree to pay a certain amount in child support then said amount can never be adjusted. This is not the case. According to New York Domestic Relations Law Section 236(B)(9)(b)(2), a court can modify a child support obligation found in an order that incorporates a settlement agreement where there is “a substantial change in circumstances,” where “three years have passed since the order was entered,” or “there has been a change in either party’s gross income by fifteen percent or more since the order was entered . . . .”
The parties, in a settlement agreement, may choose to forego the last two stated reasons for modifying child support, however. See DRL § 236(B)(9)(b)(2)(ii) (“In addition, unless the parties have specifically opted out of the following provisions in a validly executed agreement or stipulation entered into between the parties, the court may modify an order of child support where . . . .”)
Furthermore, “’[i]n determining whether there has been a substantial change in circumstances, the change is measured by comparing the payor’s financial situation at the time of the application for a downward modification with that at the time of the order or judgment’” Matter of Talty v. Talty, 42 A.D. 3d 546, 547 (2d Dep’t 2007) (quoting Prisco v. Buxbaum, 275 A.D. 2d 461, 461 (2d Dep’t 2000). Moreover, one’s “’current financial condition’” is not the necessary determining factor in evaluating the child support obligation, instead, one’s “’ability to provide support’” is. Matter of Talty, 42 A.D. 3d at 547 (quoting Davis v. Davis, 13 A.D. 3d 623, 624 (2d Dep’t 2004).
Ultimately, if you wish to modify your child support obligation that you originally agreed to but now cannot afford, you should consult a matrimonial attorney to determine if your reasons for seeking said modification may compel a court to change the obligation.