There was a recent family law support case in Family Court, Nassau County, New York, whereby a father filed a downward modification petition against the mother, alleging his employment changed, along with experiencing a drastic salary reduction, and he sought to reduce his child support obligation for the parties’ son. 

 The court found that the father had to prove a substantial change in circumstances, and that the court must consider the child’s increased needs and cost-of-living increase; especially if it creates greater expenses for the child. The court must also take a parent’s loss of income or assets into account, as well as a substantial improvement in a parent’s financial situation, and the child’s current and prior lifestyles.  The court did not find the father’s testimony credible and decided that he failed to meet the burden of proof to establish the basis for a reduction in support.

  The court stated that the father was unemployed when the parties’ last order was modified but was currently earning $10.00 per hour, and therefore failed to establish that his income decreased.  What this demonstrates is when you go in for a reduction, the court looks at what the income was at the time that the order was determined, and if it is less than what you are currently earning, you are going to have a very difficult time trying to overcome the presumption of making less money now and being unable to reduce the support order. 

 The court then added that even if it found that the father’s salary had decreased, his decision and actions to justify a reduction of his child support obligation must be taken into account.  Here, the father left New York and relocated to Pennsylvania, causing his salary to decrease because he left his job. Once a support order is in effect you are really not free to do what you want when it comes to your income unless you continue to pay the order as it exists.

  What often happens is when an order is entered, the court goes by the prior year’s income for that tax year, or what you were making for the year prior to becoming unemployed.  Sometimes it is best to wait to modify an order; waiting for a full year to pass so the income you claim to be making is the income on the prior year tax return that is submitted to the court.  This is very important and a common trap that many non-custodial payors fall into. 

 As soon as a payor become unemployed, they often file for a modification; however, their income from the prior year, or for that year up to the point of becoming unemployed, is representative of the money they previously made before becoming unemployed or disabled, and that is what the court looks at to determine if the support should be reduced: not the unemployment that just commenced. 

 That’s why it is very important to seek the counsel of an attorney prior to filing a downward modification or upward modification petition. By doing so the attorney can review the order, see what law applies, what your income was at the time that the order went into effect, as well as what your current income is.  It is very important to plan when you will file, and to know what the law is.  This is what we do at the DePalo law firm.  We consult with our clients and give them the best path to ensure a favorable outcome.  To be well prepared is a key to winning.