I get asked this question just about every day. Under New York law, the Child Support Standards Act (CSSA) sets an amount of child support. It’s a simple math formula based on how many children there are and what the parent’s respective incomes are. Each parent is expected to contribute financially to the children’s well-being. The non-custodial parent (the parent the child does not live with) pays their support obligation directly to the custodial parent or if requested, the support can be deducted directly from the paycheck of the payor. Though the CSSA sets a presumptively correct amount, parties are free to vary from it, provided the children are reasonably cared for financially (and provided that the court approves the deviation from the correct amount).
So why do people want to go back and change an already agreed upon child support amount? Sometimes it’s buyer’s remorse. A spouse is unhappy about the amount of child support to which they previously agreed. Oftentimes, circumstances change, particularly when children are young at the time of the support agreement. Either parent may have lost or gained employment or financial situations of either spouse otherwise change.
So can you get more (or pay less) support even where you have a separation agreement or divorce order that sets support amounts? Ultimately, the answer is, it depends. If you can’t agree with your spouse on the proper amount of support, then you may be compelled to take the matter up in court. In making a decision, the existence of a separation agreement is doubtfully enough to stop the court’s review. The court would likely take a look at any number of factors surrounding a petition for additional (or reduced) support.
These factors may include:
- A change in the circumstances as they existed at the time of the prior award and at the time the application is made;
- increased needs of the children due to special circumstances or to the additional activities of growing children;
- the increased cost of living insofar as it results in greater expenses for the children;
- a loss of income or assets by a parent or a substantial improvement in the financial condition of a parent, and
- the current and prior life-styles of the children.
See Brescia v. Fitts, 56 N.Y.2d 132 (NY 1982)