In our most recent blogs, we discussed some of the changes to the New York Divorce law that created a no fault divorce ground and a more liberal formula standard in granting temporary maintenance awards and counsel fees. However, a new change that did not get much public attention, but is nevertheless extremely important, pertains to the standards necessary to make an application for a modification of child support awards.
The old rule required a change in financial circumstances (undefined in the law) if the award was made by court order, or economic hardship (a higher hurdle to overcome) if the amount of child support was reached by an agreement of the parties. The new provision allows an application to be made every three years or if there is a change of 15% or more in the annual income of either parent's income, in order to obtain an upward or downward modification. (Bear in mind that this provision can be waived by the parties in a written separation agreement, so it is very important that your attorney negotiates such waiver where necessary...depending upon whether you wish to remain under the old law, or receive the benefit of the new law).
For example if the paying spouse's income decreases from $80,000 to $68,000 (a 15% decrease), then the court would be able to decide whether to modify the award according to the financial circumstances of the case. Although it would not be necessary in our example for the court to decrease the award by 15%, it may actually be the amount that the court might use. We will have to await court decisions interpreting this new law before any trends will develop.