In New York State, if the income of a parent paying child support decreases by 15% or more, he or she can file a petition to reduce their support payments, known as a “downward modification.”
Due to the current unemployment and underemployment crisis resulting from the COVID-19 pandemic, divorced parents paying child support, maintenance, and other expenses have been struggling to make these payments.
Following is information about filing for a downward modification. For specific questions, please contact us.
A downward modification of support can be filed in either Family Court or Supreme Court (the latter only if the parties are divorced). The problem, however, is that the Courts are currently not taking any new cases in this area.
If a payor has experienced a reduction in income and child support payments are automatically garnished, internal adjustment of the amount might be made.
If payments are made directly, the payor can reach out to the payee or their attorney and try to negotiate a reasonable sum, even if for an interim period.
If that fails, then the payor has the power to unilaterally reduce the amount of support. However, once the Court resumes full operation, it might hold that the payor did not have the authority to do so and the amount difference could be added as arrears.
Under New York law, a downward modification is retroactive to the date of application. Since the Courts aren’t accepting new filings, payors are essentially prejudiced against. There are other ways a downward modification can be negotiated, but these should be handled through legal representatives to ensure validity.
Similarly, unless an emergency, the Courts are not currently reviewing child custody, visitation, and schedule matters, a particular predicament given the circumstances. Disputes must be resolved through direct negotiation, with the child’s safety and welfare being paramount.
Note that the Courts are reviewing all issues concerning Orders of Protection (domestic violence), juvenile delinquency, and Writs of Habeas Corpus (bringing someone under arrest before a judge). If your case involves any one of these, an immediate application can be made to the court.
For pending cases, the Courts have been highly proactive. Attorneys are being contacted and video conferences are being set up to assess each matter.
Overall, rules and procedures are in constant flux and changing daily, so it’s important to consult with a family law attorney before taking any action.
For information about your case or any questions regarding a downward modification of support or change to custody or visitation rights, contact us.