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Saturday, June 7, 2014

Brooklyn Child Support Modification Requests Must be Preceded by Significant Changes

Court-ordered child support payments are set based on a number of factors, including both parties' income, obligations and the needs of the children.

Given that such careful consideration is made to the determination of this figure, Brooklyn child support modification attorneys are well aware that judges aren't inclined to modify the original order unless there has been a material change in circumstance.

The term "material" is one that is widely left open to the interpretation of the court. For example, if you were laid off from your job and are only accruing unemployment benefits, the court may agree to temporarily reduce your payments. Alternatively, if you are fired from your job because you didn't show up or failed a drug test, the court may determine this is a willful violation, and in turn refuse to modify your payments.

It's going to be up to your lawyer to make the best possible argument in your favor.

In the recent case of Garza v. Garza, before the Nebraska Supreme Court, the justices were tasked with determining whether the family court's grant of a father's child support modification request was proper, as the decision was appealed by the mother.

According to court records, the pair were married in the summer of 2005. Not six months later, a son was born to them, and that same month, the mother filed for divorce against the father.

The original divorce decree/parenting plan allocated primary custody to the mother, with weekend visitation given to the father, who was required to pay $500 monthly in child support.

In early 2010, the father was unemployed and subsequently moved out-of-state to obtain work. He later filed a motion for a material change in circumstance, based on his lesser-salaried new job and his out-of-state move.

The mother subsequently filed an order to show cause why the father shouldn't be held in contempt for willfully and contemptuously violating the earlier court ruling. He was indeed found in contempt, based on his being nearly $8,000 in arrears in child support, plus another $10,600 he owed her for child care expenses and $31,000 he had yet to pay her per the divorce property settlement.

The court agreed to purge his contempt if he paid $3,000 in child support upfront and kept current on his subsequent payments. He did so, and the contempt was purged.

However, soon after, he was laid off. He filed an amended application for modification, citing not only his new unemployment, but also the fact that the child had since become school-age, meaning day care expenses were significantly reduced.

The court did ultimately reduce his payments from $500 monthly to $305 (rejecting his request to make them $50 monthly). It also determined the mother was not required to meet the father half-way to aid in his visitation so long as he remained unemployed, and that once he had again found work, he was to pay her $2,500 in attorneys' fees.

He appealed on the grounds the court erred in reaching the transportation arrangement it did and insisted his payments should have been further reduced and that he should not have to pay his ex's attorney. The mother cross-appealed on the grounds that the court erred in slashing the child support award.

The state supreme court upheld the modification, finding no reversible error.

The court could find no indication that the father's two bouts of unemployment were the result of bad-faith, and they did constitute a material change in circumstance that warranted a reduction of child support. Still, the court weighed his earning capacity, as opposed to his actual income, in determining what the set rate should be. This, the high court ruled, was appropriate.

For the most part, judges aren't interested in creating a windfall for one parent or leaving the other destitute. They do generally strive to reach a fair conclusion that is ultimately in the best interests of the children involved.

Still, having an experienced legal advocate to sympathetically explain to the court your circumstances will help allow you to provide for your children in a way that is  adequate, fair and manageable.

Those with questions about Brooklyn child support modification petitions should call our offices at (718) 864-2011.

Additional Resources:

Garza v. Garza, May 23, 2014, Nebraska Supreme Court

More Blog Entries:

U.S. v. Fuller - Failure to Pay Child Support Results in Severe Consequences, May 28, 2014, Brooklyn Child Support Modification Lawyer Blog


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