When it comes to seeking a child support modification in Brooklyn, there are a few different ways parents can go about it. They can either negotiate directly with each other to reach a reasonable solution, or they can request that the court intervene.
Even if you choose the former, you will want to ask the judge to approve the change. Typically, this is not a problem - except if the amount to which you agree is below state guidelines.
The New York Child Support Standards are spelled out by the state's Office of Temporary and Disability Assistance Division of Child Support Enforcement. Generally, percentages are as follows:
- One child - 17 percent of your income;
- Two children - 25 percent of your income;
- Three children - 29 percent of your income;
- Four children - 31 percent of your income;
- Five or more children - at least 35 percent of your income.
So for example, if your former spouse's annual income is about $29,000 and you have two children together, your spouse is probably going to pay about $7,250 a year, or $600 a month. However, if your former spouse earns this same amount and you have four children together, he or she is going to pay about $9,000 annually, or $750 a month.
Agreeing to anything less, even though times might be hard, can be dangerous because successfully securing a child support modification can sometimes be difficult. The court wants to know that you have seen a substantial change in circumstances that warrant a change. If you have simply found out that what you are being paid isn't quite enough, the court may not be sympathetic. Either way, an experienced divorce lawyer will be needed to help you make the case.
This is what happened In re Marriage of Mihm, reviewed recently by the Iowa Supreme Court.
These two parties married in 1997, had three children and divorced in late 2008. The former husband was ordered to pay $2,500 monthly in temporary child support payments (while the divorce was pending). This was in line with the state guidelines.
Later, the pair reached their own agreement. The husband would pay the wife $500,000 - $100,000 immediately and $400,000 in installments over the course of eight years. He would also pay $500 monthly in spousal support and $1,500 monthly in child support. This $1,500 monthly amount was far less than what the state's child support guidelines stipulated (just 60 percent of the original order). However, this fact was not pointed out by the district court and no reason was offered.
The following year, the husband sought to modify the agreement because his former wife had moved more than 60 miles away without receiving prior court approval, in violation of their divorce decree. The ex-wife had also remarried and custody of the oldest child now was with the father.
The former wife then filed a counterclaim, seeking to increase child support payments, as the former husband's income had become substantially higher.
The wife would later testify that she signed the earlier stipulation against the advice of two attorneys because she felt harassed by her ex-husband and simply wanted it all to end, so long as she could maintain custody of the children. She conceded she wanted to change the child support obligation agreement because she had "made a bad deal."
The district court found that the ex-wife failed to show a significant change in circumstances and denied her request to modify the child support obligations - even though they were much lower than what the guidelines would suggest. The court reasoned that because the agreement was made by both parties with full knowledge that the support payments were below guidelines, the agreement shouldn't be modified unless "for the direst of needs."
The ex-wife appealed and this earlier ruling was confirmed. It wasn't until she appealed to the state's supreme court that she was able to obtain relief, as that court reversed and remanded on the issue of child support, with the court finding the ex-wife had shown a substantial change in circumstance.
Specifically, the move of the oldest child to the father would warrant this change. The lower courts had reasoned that this type of change would typically result in a decrease in obligations, not an increase, and so declined to consider it. However, the supreme court noted that even at $1,500 a month, the former husband was paying far less for just two children than he would under the standard guidelines.
The court also reasoned that while her spousal support of $500 monthly was correctly terminated, it had been taken into consideration back when she agreed to accept just $1,500 a month for the three children. Lacking that additional $500 a month, even if it was properly terminated, would still be something the court should weigh.
In the end, the modification request was granted - but not without a fight. It's always best to ensure the deal that is worked out during the divorce sufficiently meets the needs of you and your children. An experienced attorney can help.
If you are contemplating a divorce in New York City, call our offices at (718) 864-2011.
In re Marriage of Mihm, Jan. 24, 2014, Iowa Supreme Court
More Blog Entries:
Brooklyn Child Support Modification Requests, Voluntary Job Loss and Imputing Income, Feb. 1, 2014, Brooklyn Child Support Lawyer Blog