Not to worry, since the amendments to the child support laws now make upward modifications automatic, or at least presumptively so. It is important to remember that although the Child Support Standards Act sets support as a percentage of income, it also contains numerous factors by which the court can “deviate” from this presumptively correct child support figure. These factors include the financial resources of each of the parties and the child, the standard of living the child would have enjoyed had the marriage or household not been dissolved, the non-monetary contributions that the parents will make toward the care and well-being of the child, a determination that the income of one parent is substantially less than the other parent’s gross income, and/or a consideration of the needs of the other children of the non-custodial parent, if the resources available to support these children are less than the resources available to support the child or children who are the subject of the support proceeding.
The irony is that the enactment of a new easier method to modify child support may well put renewed emphasis on the importance of these deviation factors to arrive at a fair child support modification. Although it may be tempting to believe that an increase in income of fifteen percent or more will automatically translate into a fifteen percent increase in child support, those opposing such increases have little to lose in asking the court to consider the effect on the finances of their new families. Especially in cases where the custodial parent is gainfully employed and remarried to a high-earning individual, it will be difficult for the courts to blindly apply the child support percentages to income and expect a fair and just result in a modification proceeding.
It should not be overlooked that the new law also provides for downward modifications of support. However, a reduction in income will not be considered as a ground for modification “unless it was involuntary and the party has made diligent attempts to secure employment commensurate with his or her education, ability, and experience.” This is not new, since it was long established by case law to be the appropriate standard of downward modification applications. The new law simply codifies the old case law standard.
Primarily, the new law provides additional grounds for modification of child support. It also re-states, as a separate ground, “substantial change of circumstances.” In this way it does not supercede or over-rule any existing methods of support modification. In fact, the New York State Assembly Memorandum in support of the new law indicates the law is not intended to change the existing law regarding the standard for modifications of orders incorporating but not merging separation or settlement agreements. So, for example, in cases that do not otherwise meet the criteria for modification because there has not been a 15% change in income or 3 years since the existing order entered, there can still be a modification if there has been an unanticipated and unreasonable change of circumstances.