Family law in New York State provides a mechanism for reducing your child support amount via a Petition for Downward Modification. Remember that child support is, in general, governed by the Child Support Standards Act, which provides that most non-custodial parents will pay:
( if Combined Income is Under $130,000)
One child: 17%
Two children: 25%
Three children: 29%
Four children: 31%
Five children: no less than 35%
Once cost of living adjustments are made, these numbers can get higher. Sometimes, it all sounds good on paper, but for a very good reason (and you know the reason in your case) the child support amount is too high. How do you do a Petition for Downward Modification?
First of all, you shouldn’t…not on your own.
While a basic template is available at http://www.nycourts.gov/forms/familycourt/childsupport.shtml ,representing yourself (appearing pro se) is a trap for the unwary.
There are many procedural and substantive requirements which must be met to succeed in your effort to reduce the amount of support that you pay. Procedural requirements include filing a Personal Information Form, serving the other party and supporting that service with an Affidavit of Service from your process server which is then filed with your Petition, and filing a Financial Affidavit. This is only a partial list of requirements.
Substantive requirements include showing the court that it has valid jurisdiction, showing the Court that an unanticipated, substantial change in circumstances has occurred, and that the downward modification is in the best interest of your children. This, too, is only a partial list of substantive requirements for a successful petition for downward modification.
There may be complications which make your Petition much more difficult: did you sign a Separation Agreement? Was it incorporated but not merged in your Judgment of Divorce? If you did sign a post-nuptial agreement or any other contract, you need to show the Court why that Agreement should not continue to govern the amount of your child support. After all, contract law normally applies, and you are often stuck with the document, even if you don’t like the terms of the Agreement later. Sometimes, the Agreement you signed can be attacked: if it was unfair and inequitable when drawn (see for instance, Tommaso v. Tommaso, 35 A.D.3d 591, 826 N.Y.S.2d 420 (2006)) or unconscionable in its terms and procedures. The leading case in New York for unconscionability is Christian v Christian. 42 NY2d 63 (1977). Once you successfully attack the agreement, a modification of child support is possible.
This overview of Petitions for Downward Modification is just that—an overview. It is not a step by step manual for your action. No attorney-client relationship has been formed in the writing of this blogpost. I just know that many clients come to meet with me with no idea what the Court is looking for, what makes their case strong, and what its potential weaknesses are. This overview might help you to retain counsel to get you to your goal. Good luck and keep your head up.
You can contact Amy M. D’Amico., Esq. at www.lawwny.com