In recent months, courts throughout New York state have been inundated with applications for the downward modification of child support and/or maintenance (also know as spousal support), as a direct result of the troubled economy. The outcomes in these cases illustrate that in practice, most petitioners will find themselves stuck with the terms of their original bargain. In general, this speaks to the importance of having a flexible separation agreement that anticipates the potential for a change in financial circumstances. However, a successful modification remains possible if the petition is timed properly, well drafted, highly detailed and replete with persuasive documentary proofs.

Specifically, the challenge faced by a petitioner depends upon how the child support and/or maintenance obligation arose. There are three possibilities:

  • The petitioner may have never agreed to the child support or maintenance obligation; instead, it may have been imposed upon him by court order. In such a situation, the petitioner will be required to prove only that a substantial change in circumstances has occurred since the order was issued.
  • The petitioner may have voluntarily entered into an agreement with respect to child support. In such a situation, the petitioner will be required to prove that unanticipated changes in circumstances have occurred.
  • The petitioner may have entered into an agreement with respect to maintenance. In such a situation, the petitioner will be required to prove extreme hardship in continuing payment of the existing maintenance.

Is loss of employment, or a significant drop in income or property values, sufficient to obtain relief? Fairness would seem to require that this question be answered in the affirmative, but the law in this regard unfortunately does not speak in terms of fairness. In fact, quite to the contrary there is a substantial reluctance on the part of the judiciary to disturb established child support and maintenance obligations even in light of the harsh effects of the recession.

For example, in April of last year, a Long Island father sought to reduce his child support payments on the grounds that he lost his job due to downsizing, his new wife also lost her job, and his house was in foreclosure. Although the court recognized the involuntary nature of the job losses and that such changes were unanticipated, it refused to modify the child support. The court held that since the applicant’s income had significantly increased over the years since the child support agreement was entered into, and he was the recipient of a severance package, he had failed to demonstrate an “unreasonable” change in circumstances.

A newly unemployed Westchester father fared no better in seeking to modify his child support court held that he failed to provide sufficient proof that he had used his best efforts to obtain employment commensurate with his qualifications and experience after losing his existing employment.

Specifically, courts have emphasized that they will look not only at the petitioner’s income at the time modification is sought, but also at petitioner’s overall financial circumstances, including potential earning capacity and the ability to maintain his or her own lifestyle.

The best strategy for a parent or ex-spouse struggling with child support or maintenance obligations as a result of the recession or other changed circumstances is to allow sufficient time to lapse between the changed circumstances and the filing of the petition of modification. This will enable the requisite proofs (e.g., a substantial job search) to be collated into a carefully framed petition.

Looking forward, however, separating or divorcing parties should include provisions in the separation or divorce agreement setting forth standards for triggering an automatic change in child support and/or maintenance obligations. Those provisions will be recognized and enforced by the courts (subject only to the best interests of a child to receive adequate support).