You have been ordered to pay child support and you can no longer afford to make the same payments as you were.
The first question that needs to be answered is why can you no longer afford the child support that you were ordered to pay?
Child support is based upon current income and the number of children that you are currently supporting. For example, child support for one child is 17% of your Adjusted Gross Income, two children are 25% of your Adjusted Gross Income, etc…
In the event you have voluntarily ceased working and have either taken a job with less money or have stopped working, the Court has the right to deny any application for reduction of child support, and imput income on the payor if the reduction in income is voluntary.
In the event the payor has lost his/her job through no fault of their own, they can file a Petition in the Nassau County Family Court to reduce their child support to match their current income.
The parent making the application is required to show not only that the loss of income was due to no fault of their own, but that they are making reasonable efforts to obtain similar or better employment. Anyone in this situation should maintain a diary outlining all efforts they are making to find another job and be prepared to share that with the Court on the return date.
Assuming that the loss of income is due to a physical injury, the payor must show the Court all medical records, and have a doctor write a note and/or be prepared to testify as to what the physical injury is and how much time is reasonably needed to heal and get back to work.
In the event of a permanent disability, the payor must prove the permanency of the disability. Remember, the Family Court Act specifically provides that child support is taken from all sources of income, including disability payments and SSI. That means if you find yourself in a position where you are permanently disabled, you are still going to have child support obligation, although at a lesser rate.
In the event you find yourself living below the poverty level, or above the poverty level and below the income reserve amount, you still will have a child support obligation, although at a very low level.
Choosing to either lower or suspend your child support payments on your own is ill advised. The reason for that is your right to a downward modification of an existing Court Order is nun pro tunc, or goes back to, the date that you filed the Petition. The Court will not grant any relief for any pre-petition non payment by the payor.
Modification of an Existing Child Support Order as a Matter of Right.
The Child Support Standards Act was modified on or about October 13, 2010. Based upon the modification in the statute, either party may move for a modification of the existing child support Order upon the following grounds:
- Three years have passed since the order took effect, was last modified, or adjusted.
- If your “gross income has changed by 15 percent or more since the order was entered, last modified, or adjusted.”
- If you experience a substantial, unforeseen, changed circumstance
The State of New York says that “the amount that you owe for child support may change based on a cost of living adjustment (COLA).” An order may be eligible for COLA when it meets both of the criteria listed below:
- Your child support order is at least two years old.
- “The sum of the average annual percentage change in theConsumer Price Index for Urban Consumers (CPI-U) is equal to or greater than ten (10) percent.”
The family law attorneys at The Law Offices of David L. Martin, Esq., P.C. are highly experienced in this area of the law. Call the office and set up a free consultation.
The Law Offices of David L. Martin, Esq., P.C. is located at:
1415 Kellum Place, Suite 205
Garden City, NY 11430