New York law provides for payment of child support until the age of 21. Basic child support covers food, clothing and shelter expenses and is calculated using a statutory formula. Add-on expenses cover all other childcare costs which are not food, clothing and shelter, such as, unreimbursed medical costs, childcare, private school, summer camp, extracurricular school activities and tutoring, among other things. Both basic child support and add-on expenses are paid pro rata in accordance with the parties’ respective incomes. The parties may also negotiate the amount of support.
Once support is awarded by a court, the law allows child support awards to be reviewed under the following circumstances:
- Review every 3 years. Either parent can seek a modification (upward or downward) if 3 years have elapsed since the child support order was entered, last modified or adjusted. The court will look at the parties’ current income to recalculate the Basic Child Support amount.
- Change in income of 15% or more. Child support can be modified if either parent has had an involuntary change in income by 15% or more.
- Substantial change in circumstances. If there have been substantial changes to the cost of raising a child or to a parent’s income, the court may increase or lower child support obligations. Typically, this situation arises when a child develops special needs or a parent has lost his/her job and cannot afford/needs more child support. The court will look for evidence that the parent is actively looking for substantially similar employment, such as a record of contacting employers and applying for positions to support any change.
It should be noted that the parties can agree to waive the right to seek review every 3 years or if there is a change in income of 15% or more. However, in the case of a substantial change in circumstances, the right to modification cannot be waived. The rationale is that such a change will significantly impact the children’s lives and courts have the authority to adjust support accordingly.
Regardless of the grounds for modification, the court will ask for financial documents and the most recent federal tax returns from both parties. Support will be recalculated based on the new amounts. Even if the total amount of support remains the same, how it is allocated between the parties may change.
If you are paying support and your income has changed substantially, you should seek modification as soon as possible. Modification is only effective as of the filing date of the modification application. Support due before that date will not be reduced and you will owe any arrears.
Contact us for assistance filing for or contesting a change in child support.