Foreign Divorce | Divorce Lawyer Long Island

Will a foreign divorce be recognized in the state of New York?  The first question that must be answered is what is a foreign divorce?  A foreign divorce is one granted from another state in the union or another country.  With respect to divorces from a sister state, under full faith and credit clause of the U.S. Constitution, New York will give grant full faith and credit to judgments from sister states. What if the judgment came from another country?  That was the issue presented to the Court in Ahmad v Khalil.

In this case, the parties were married in Jordan.  After two years, they moved to New York.  After approximately eight years, the mother moved back to Jordan with the children.  Father continued to provide financial support to his family.  A court in Jordan granted the Wife’s petition for divorce.  That divorce action dissolved the marriage but did not address issues relating to child support and distribution of assets.  The Husband commenced an action in Jordan relating to the custody of the children.  The Wife then starts an action in New York, seeking maintenance and child support.

Courts will generally accord recognition to the judgments rendered in a foreign country under the doctrine of comity which is the equivalent of full faith and credit given by the Courts to judgments of sister states.   Absent a showing of fraud or some showing that recognizing a divorce from a foreign state would be against some strong public policy.  With respect to public policy, this exception is rarely used and only considered when the divorce in the foreign country is counter to fundamental notions of what is decent and just.  Therefore, for a court to refuse full recognition to a lawful foreign judgment, it must be demonstrated that he decree violates some fundamental principle of justice, some prevalent conception of good morals or some deep-rooted tradition of the common good.  Essentially, Courts will generally look to validate and enforce foreign judgments.

In this case, the Wife attempted to set aside the Jordanian divorce decree by arguing a lack of due process.  She argued that in Jordan, a husband is allowed to obtain a divorce unilaterally without notice or consent of the wife.  The Court did not give much credit to this argument.  It appears that the wife actually started the divorce in Jordan and then withdrew her action there when she discovered that it was to her financial best interests to obtain a divorce decree in the State of New York.   Thus, the Court recognized the Jordanian divorce.

Though the divorce decree was recognized by the Court, there was martial property that was located in New York.  The Court allowed the wife to litigated the issue regarding the equitable distribution of the New York property as this court would be the most convenient court to hear this matter.  The Court declined to hear issues related to child support, maintenance and distribution of property in Jordan.  The Court reasoned that the children had lived and current live in Jordan.  There is Jordanian property to be disposed of and there are procedures in Jordan which the wife can avail herself to address these issues.

When faced with a foreign divorce, the going in position of the Courts will be that the divorce will be enforced absent a showing of fraud in the procurement of said divorce.  If your spouse comes home one day and announces that you have been divorced through a judgment from another country, see us immediately.  Typically we see this issue arise from divorce decrees granted in the Dominican Republic.  Swift motion practice will be needed to protect your rights.

Relocating With Your Child | Long Island Family Law Lawyer

After a divorce is complete, if there were children of the marriage, custody of the child was resolved. Typically, though not always, one parent is awarded residential custody of the child subject to visitation rights of the other party.  After some time passes, one question which may rise is it whether is it possible for the residential parent to move out of the state.  The appellate department discussed this issue in Batchelder v. Bonhotel.

In Bonhotel, Father and Mother, never married and had one child.  They separated and stipulated that Mother was to be the residential parent, subject to the visitation of rights of the Father.  Father was entitled to see his son every other weekend and one overnight every other week.  The Father was consistent with his visitation with the Court finding that the Father and son benefitted from a close relationship.  Two years later, the Mother lost her job and made plans to move out of New York to Alabama. She informs Father the night before her departure.  Father petitions the Court for residential custody of the child.

As a first step, to change the custody arrangement there must be a significant change of circumstance.  In this case, step one was easily met.   The Mother moving out of the state constituted a significant change of circumstances.  Therefore, the Court immediately turned its attention to whether the Mother could relocate with the child.  In making such a determination, the Mother bears the burden of proof that she should be allowed to move by a preponderance of evidence.  The Court will look at the following factors: (1) the relationship with the parents; (2) the effect of the move on the noncustodial parent; (3) the potential enhancement to the custodial parent and child due to the move; and (4) parents’ motives for seeking or opposing the move.

In this case, the Mother claimed that she was unemployed and had better prospects in Alabama with her fiancé.  With a little digging, it was discovered she recently met her fiancé online and was planning to stay at his residence.  It was also discovered that her ability to support herself and her son, in addition to the child support, was completely dependent on the fiancé.  Finally, and the fatal blow to the custody issue, the Court found that the Mother failed to foster a relationship between her son and the Father.  She had quit her job so that she could move to Alabama and failed to demonstrate that she was providing a stable environment for her son.  Evidence to support her lack of support between the son and the Father was the fact that she sprung the move on the Father the day before and refused to give the Father contact information regarding where she was going and how he could contact his son.   The Father, on the other hand, had a steady job, and though he had a girlfriend, was in a steady relationship providing a stable environment.  The key though was the Father’s willingness and work towards fostering a close relationship between his son and the Mother.  He explained that if the Mother were to leave for Alabama, he committed to skype sessions with his son to see his mother no less than two or three times a week.  As a result, the Court denied the Mother’s request to take the child out of the State and granted the Father’s request to change residential custody to the Father.

In this case, the Mother was unable to show how leaving the state would enhance the child’s life, and what I believe was the key to this ruling, the Mother failed to show how she planned on dealing with separation between the Father and his son.  Here the Mother was actively hostile to the Father and in no way fostered the relationship.  The lesson to take away from this ruling is that the Courts do not look favorably on a party who in any way interferes with the relationship between the child and your former spouse.  One can surmise that the uphill battle she had to move her son to Alabama was not made easier with her open hostility to the Father.

If you do want to move your child from the state, make sure that you have a well thought out plan which includes fostering the relationship between your child the non-custodial parent.  In addition, be ready to explain how moving your child out of state and away from the non-custodial parent is in the best interests, i.e., will advance the child’s education, financial welfare, and education. If you face any problems with relocation and child custody make sure to contact a divorce attorney a Long Island family divorce lawyer at Divins & Divins, P.C. for a free consultation.

Joint Custody & Child Support in New York

Happy Children Playing Kids

Happy Children Playing Kids (Photo credit: epSos.de)

Amongst the hardest things to deal with when getting divorced is providing for the best interests of any children of the marriage.  What some parents immediately think about is child support. The parent who is deemed to be the residential parent is the parent entitled to child support.  While that is easy enough to understand, it becomes tricky when both parents are residential parents, i.e. the children live with both parents exactly fifty percent of the time.  Many parents do this under the misconception that if they split the children exactly fifty percent of the time, child support will not be an issue.  This is not true as the parties in Leonard v. Leonard, found out in June of 2013.

The parties began an action for divorce and the issue revolved around child support.  The father was granted sole legal custody of the children.  This means, that while the parties should endeavor to consult each other regarding major decisions affecting the children, in the event the parties cannot agree, the father is the one who has final decision making authority.  Despite this determination, the parties were granted joint residential custody of the children.  The custody arrangement called for the children to spend exactly half the time with the father, and half the time with the mother.  Father earned approximately $134,000.00 a year and the mother earned approximately $14,000.00 a year, though the court imputed $25,000.00 a year income on the mother.

It is well settled that in a shared residency arrangement, where neither party has the children for the majority of the time, the party with the higher income is deemed to be the noncustodial parent for purposes of child support.  Thus, the father, who made more money, was ordered to pay child support to the mother.  Here is the rational that the law relies on.  An award of child support will best ensure that the children of the marriage will receive the maximum benefit of their parents resources and continue to enjoy, as close as possible, their pre divorce standard of living.  In other words, the Court wants to ensure that the children can enjoy living with both parents as much as possible.

When dealing with custody of your children, people often think about joint custody, sole custody, shared custody and child support.  Here is a simple way to think about these complex issues.  First and foremost, where are your children going to sleep?  Both parents generally want to be the residential/custodial parent, i.e. the parent where the kids will reside.    The benefits of being declared the residential/custodial parent include, having your children live with you, final decision making authority, and child support.   Amazingly, child support is a battle.  It is simply amazing the amount of cases where the issue is simply the payment child support.  One way people try and avoid this is to split the children equally.  As we have seen, this is a misguided approach to avoiding child support.  First and foremost, it requires the children to move from parent to parent practically every week.  Once the children are school aged, this may not be in their best interest.  Additionally, you need to consider whether avoiding or getting child support by disrupting your children’s schedule is what’s best for them.  In all likelihood, it is not.  Considering custody in a divorce and need help? Call a Long Island divorce lawyer at Divins & Divins, P.C., for a free consultation and we’ll help resolve all of your questions and concerns.

Enhanced by Zemanta

Sale of the Marital Estate in New York

One of many issues which must be dealt with when getting divorced is what to do with the marital estate.  For purposes of this article, we are going to assume the martial estate was purchased during the marriage from marital funds.  Future posts will deal with a marital estate that was either originally separate property or separate property was used to purchase the estate.

The marital estate is marital property and must be disposed of in accordance with the Domestic Relations Law.  The first option is to simply sell the home. Once the sale is complete, any profits or losses are to be shared equally between the parties.  If you have been following these posts you know by now that nothing is that simple.  The other option is to have one party buy the other party’s interest.  You simple decide on a fair price and the party wishing to remain in the home must buy the other party’s interest in the home.  Yet another option is to trade your interest in exchange for other marital property or responsibilities.

For instance, we recently had a case where our client, wife, was to retain physical custody of the children.  The husband did not want to pay child support and we were heading straight to a trial.  We began discussing the marital estate.   There was significant equity in the house.  We agreed to have the husband waive his interest in the house in exchange for his child support obligation.  We simply calculated what his child support obligation would be and compared it to his equity in the house.  As both numbers were close, this was a creative way to have the wife keep the marital residence, the children stay in the home they were used to and dispose of the marital estate.

The most challenging aspect of the marital residence is when one party does not want to sell the asset yet wants to be divorced.  Fear not, the house will be sold however if you cannot get the parties to agree, then you must look to the Court for assistance.  In our example, the marital estate is own by the parties as tenants by the entirety.  Therefore, the Court will lack the authority, absent the consent of the parties, to order a sale of the marital estate while the parties are married.   If your spouse stands their ground, the Court can order a sale after you are divorced.  The Court can and will order how the net proceeds or liabilities are to be split.

Then there is the hybrid case, where both parties want to sell the house but there are young kids involved.  Another possibility that is often used is to allow the spouse who retains physical custody of the children to remain in the house.  That spouse will be responsible for all the bills related to the marital estate and will agree to indemnify the spouse who is moving out in the event any liabilities relating to the house arise.  Normally in the separation agreement, there is language which provides that the spouse who remains in the house shall pay all bills relating to the estate and that in the event the mortgage is not paid for a certain amount of months, the house will be automatically put up for sale.

Disposing of the marital estate can be complicated and is not as easy as simply selling off the estate.  If you are contemplating divorce and you believe the marital estate may be an issue, contact us immediately to begin preparing your matter.

Modification of Child Support

English: MANAMA, Bahrain (Feb. 10, 2010) Instr...

(U.S. Navy photo by Mass Communication Specialist 2nd Class Aramis X. Ramirez/Released) (Photo credit: Wikipedia)

Once child support is established, the terms are normally placed in an agreement which is then used to facilitate your divorce.  This separation agreement which is normally incorporated but not merged into a judgment of divorce is a contractual obligation on the parties.  Thus, when entering into such an agreement, you must make sure that the terms are something that you can live with.  It is assumed, upon execution of this separation agreement that you have anticipated and have adequately provided for the child’s welfare.  If you later on decide that you want to change the terms of the agreement, the Courts will first look to the agreement and will only deviate from the terms of the agreement if the needs of the child are not being met.

Generally speaking, child support will not be changed unless there has been an unforeseen change in circumstances and a concomitant showing of need. What qualifies as an unforeseen change in circumstance?  That will be decided on a case by case basis.  The one change in circumstance which never works is when the paying spouse intentionally quits their job and then runs into Court claiming that they can no longer afford to pay child support.  If you have a child support obligation and you purposefully or intentionally quit your job, you will still be liable for child support at the amount in which you agreed in your divorce.

What if you lose your job due to no fault of you own.  That’s where the facts and circumstances of your matter come into play. Lets suppose you lose your job because the factory you were working at closed down.  Clearly, not foreseen nor anticipated.  You are not allowed to sit home and not work.  You are not allowed to claim you cannot pay for child support because you lost your job. It is incumbent on you to find another job.  Of course you can petition the Court to modify your child support, but you have to show the Court that you are actively searching for a job.  We advise our clients to immediately start looking for a job.  Go on interviews, attend job fairs do anything that can show that you are actively looking for work.  If you can show the Court that due to no fault of your own, you have lost your job but you are doing everything you can to obtain new employment, you maybe be able to get a modification of child support.

What if after your search, you immediately find a new job but it is substantially less than what you were making?  Again, it depends on the facts of your case.  If you were a doctor, and you took a job as a waiter, the Court will not look kindly to that as you are under employed. What if you were a waiter, and you obtained a job as a waiter in another restaurant.  Depends.  Were you a waiter and Ruth’s Chris and now you are at a local diner?  Maybe you’re underemployed, maybe you’re not.  Did you take this job pending other interviews?  Again, it all depends on your facts and circumstances and what you are doing to obtain employment.

If you are the one receiving child support and your spouse has stopped paying, you want to look into why.  If your spouse intentionally quit their job, then move for contempt.  The best interests of your child dictates that your spouse should not be allowed to quit a job to avoid child support.  What if the loss of employment was clearly not your spouse’s fault?   The best thing would probably agree to a temporary reduction in child support, pending new employment. If there is a legitimate change in circumstance, you cannot get money from a source that doesn’t exist. A temporary adjustment will give your spouse time to get a new job and shows that you are reasonable to the Court should you go that far.  Second, if you have to go to court, while you have tools to compel enforcement of child support orders, if there is a legitimate change in circumstance, how will spending time in family court help you get child support?  It won’t.  Thus, you have to know the reasons for the lack of support.  If there are valid reasons, we recommend working with your ex-spouse.  If there are no valid reasons, then Court may be your only solution.

If you need to modify your child support, or if you are being asked to modify child support obligations, contact us immediately so we can prepare the best case possible based on your unique set of circumstances.

Calculating Child Support

Contrary to the common perception, the child support calculation is really a black and white issue.  The Child Support Standards Act (“CSSA”) found in Domestic Relations Law §240 (1-b) explains exactly how child support is to be calculated.  Pursuant to the CSSA, child support is a percentage of combined parental income, minus FICA /Social Security taxes, capped at $136,000.00.  The relevant percentages are:  17% for one child; 25% for two; 29% for three; 31% for four; 35% for five or more however, the Court has discretion when setting the percentage for five or more children. So when considering what the child support obligation is going to be in any particular case, the first thing the Court will do is determine what the obligation is pursuant to the CSSA.

For example, if Spouse A earns $60,000.00 a year and Spouse B earns $50,000.00 a year, and there are two children of the marriage, the following calculations apply

Spouse A: Gross Income is $60,000.00. Subtracting FICA/Social Security, for CSSA purposes, Spouse A’s income is $55,410.00.

Spouse B: Gross Income is $50,000.00.  Subtracting FICA/Social Security, for CSSA purposes, Spouse B’s income is $46,175.00

Next, the Court combines the incomes: $55,410.00 + $46,175.00 for a total of $101,585.00  As there are two children in this example, the percentage set by the CSSA is 25%.  Thus, the child support obligation in this example is $25,396.25  a year.  Now that the obligation is determined, that number is split between the spouses on a pro rata basis.

Spouse A: $55,410.00/$101,585 = 55%.  So Spouse A’s obligation is $25,396 * .55= $13,967.80 a year, or  $268.61 a week ($13,967/52 weeks a year) or $1,155.00 a month ($268.61 * 4.3—the average weeks a month).

Spouse B: $46,174/$101,585= 45%.  So Spouse B’s obligation is $25, 396.25 * .45 = $11,428.20 a year or $219.77 a week ($11,428.20 / 52 weeks a year) or $945.02 a month ($219.77 * 4.3—the average weeks a month).

Here is where the battle usually occurs.  The spouse who has residential custody of the children will get child support.  So, in our example, if Spouse A retains residential custody, Spouse A will receive $945.02 a month in child support.  If Spouse B retains residential custody, Spouse B will receive $1,155.00 a month in child support.

If the combined income of the spouses exceed $136,000.00, then the Court will decide on what number to use to determine child support.  It is completely in the Court’s discretion and the Courts  look at a variety of factors in determining where to cap the child support obligation.  However, this will give you the basic idea on how child support is calculated.  There are numerous other factors which can come into play which will effect a person’s income for CSSA purposes.  For example, what if Spouse A must pay child support, but the reality is, even though Spouse A makes $55,410.00 for CSSA, that spouse is already paying child support to another child?  What if Spouse A’s income is not sufficient to provide child support pursuant to the CSSA and be above the poverty line?  These are common questions which need to be addressed when contemplating child support obligations.  Call for an appointment and discuss your options to ensure you are either receiving or paying the proper amount for child support.

Carrying Costs and Temporary Maintenance in a Pendente Lite Application

Upon commencement of an action for divorce, frequently the “non-monied” spouse will file a pendente lite motion with the Court. Said motion normally seeks temporary relief pending the litigation. Typically one asks for temporary maintenance, temporary child support and attorney’s fees. There are other things a movant may ask for however, these are the three big topics which are sought. Unfortunately, temporary maintenance is not clearly defined, which leads to differing opinions as to what temporary maintenance covers. Recently, in Woodford v. Woodford, a Second Department decision, the Court attempts to shed some light on temporary maintenance.

In Woodford, the wife moved pendente lite, for temporary maintenance, 100% of the carrying costs of the marital estate and for her attorney’s fees. The Supreme Court ruled that the husband was to pay 100% of the carrying costs, temporary maintenance and to pay $10,000.00 as and for attorney’s fees, with leave to apply for more money should the need arise. As you may know, carrying costs are essentially the costs associated with maintaining and running the household. It includes the mortgage or rent, utilities, cable, internet, phone, the other costs associated with the home. Husband appeals to the Second Department arguing that temporary maintenance should include the carrying costs, thus he should not have to pay both carrying costs and additional monies for maintenance.

Domestic Relations Law §236(B)(5-a) sets for formulas in which the Court is to use to determine the presumptive temporary maintenance award. After determining what the presumptive award should be, if the Court wishes to deviate from said award, it must explain why such deviation was deemed necessary. What the statute does not address is what temporary maintenance is to cover. The Court held in this case, that it is reasonable and logical to think that the temporary maintenance statute was intended to cover all of the wife’s basic living expenses. Therefore the Court vacated that part of the ruling which ordered the husband to pay for both the carrying costs and temporary maintenance and directed the Supreme Court to reconsider the wife’s motion.

This ruling seems to say that carrying costs are part of temporary maintenance. One would think then that the Court, if it wants to award both temporary maintenance and have the “monied” spouse pay for the carrying costs, the Court would then award a larger temporary maintenance award to cover both the carrying costs and provide for temporary maintenance. Ultimately, since the statute is vague and ambiguous as to this point, it rests in the particular Court to which you are arguing your motion. Until the legislature either repeals this statute or clarifies it, the Courts will continue to interpret the temporary maintenance statute in their discretion. Each case will produce different results based on the particular facts of the case, which will then be interpreted in the discretion of the particular Court hearing your motion. Therefore, in preparing your motion, it is imperative that you carefully explain to the Court all your needs so as to put yourself in the best position to obtain an adequate temporary maintenance award.

Enhanced by Zemanta

Ground For Divorce In New York – Cruel and Inhuman Treatment


There are multiple grounds for divorce in New York. This article will briefly describe what you must be able to show to file for divorce pursuant to DRL §170(1), cruel and inhuman treatment. Cruel and inhuman treatment can be defined as such conduct that so endangers your physical or mental well-being making it improper or unsafe to cohabit with your spouse. So the question becomes what constitutes conduct which so endangers your physical or mental well- being.

The easiest example will be repeated physical abuse. Clearly, if your spouse is physically assaulting you, that would be a strong argument for cruel and inhuman treatment. Must it be “repeated?” Depends- here are two extreme examples. Say your spouse slaps you once. Doesn’t slap you again, and never has before. Is that enough to grant a divorce under DRL §170(1)? Probably not. That does not mean this behavior is excused or that you cannot get divorced if you so choose, but under the cruel and inhuman provisions, this is probably not enough for a Court to grant you a divorce under this section. On the other hand, say your spouse physically assaults you one time, however this one time lands you in the hospital with serious injuries. Your spouse hasn’t done something like this in the past. This may be enough to qualify as cruel and inhuman treatment and the Court may grant you a divorce.

What about mental abuse? Acts of verbal abuse and torment have been held sufficient to establish grounds for cruelty where they have been of a serious nature and where a pattern of such behavior could be shown. Courts have granted divorce based on this section where a spouse was able to show be subjected to constant denigration followed by lengthy bouts of outright ignoring causing severe depression requiring psychological therapy. Flaunting extra marital affairs and refusal to return to the marriage, coupled with taunting a spouse about their physical appearance and shortcomings have also been deemed enough for a Court to grant a divorce.

Courts have also held that intoxication and/or drug abuse, in the right circumstances may qualify. For example, if your spouse is an alcoholic and when your spouse is drunk engages in either physical or mental abuse, the Courts have granted a divorce based on cruel and inhuman treatment as a result of your spouses habit.

Proving cruel and inhuman treatment can be challenging. Generally speaking, such acts which rise to the level of cruel and inhuman treatment happen in the marital residence behind closed doors. Rarely are there witnesses. That being said, while the Court of Appeals (the highest court in the State of New York) has not specifically ruled on this issue, the second, third and fourth departments have expressly held that corroboration is not required to prove cruel and inhuman treatment. Clearly, medical documentation would corroborate abuse or witnesses to said abuse would strengthen your case however, as just mentioned, it not always possible. The final point to be made is that while it is necessary to draft pleadings with enough specificity to allow your spouse to defend the action, the Courts have recognized that an abused spouse rarely if ever keeps a log if every separate incident of abuse, however, generally speaking you need to narrow the times of the abuse enough as to give your spouse an ability to defend the claims you are making. Additionally, claims of abuse should be no more than five years old. Once you start making claims more than five years old, while it might be useful to show a pattern, you may run into a statute of limitation problems. Generally, misconduct occurring more than five years prior to the commencement of the action may not be used to support the cause of action.

LEARNING POINT: Getting divorced pursuant to DRL§170(1) is a complicated matter, which thankfully isn’t necessary because New York has recently allowed for no fault divorces (to be discussed in later blogs) however, if you do want to pursue getting divorced under this provision of the statute, you must be ready to discuss the various forms of abuse you were subjected to and be ready to prove them in Court. Contact us for more detailed information on how to secure a divorce under this provision of the DRL.

Which Spouse Retains Residential Custody?

Child Custody Long Island

When deciding which spouse will retain residential custody, the Court will have to determine what is in the best interest of the children in question. Until recently, NY followed the “tender years presumption” which stated that mothers were inherently better suited to assume the custody of young children. This presumption has been abolished and the law is currently gender neutral. Thus, there is no prima facie right to custody of a child to either parent. The Court will consider a host of factors when deciding what is in the best interests of the child. Factors the Court will contemplate include: (1) the parent’s physical and mental health; (2) the use of drugs and/or alcohol; (3) sexual activity; (4) lifestyle; (5) neglect abuse or abandonment; (6) physical or emotional abuse and (7) the parent’s relative economic status. These are just a few of the examples which the Court will consider. The Court will not give more weight to any particular factor it considers. Instead the Court will consider the totality of the circumstances when making a determination.

In evaluating what is in the best interests of the child, the home environment and ability to meet the child’s needs will need to be ascertained. The Court will consider the quality of the home environment each parent is able to provide for the child. Thus, the Court will be looking not only to the physical safety of the home, but each parent’s ability to provide for the child’s emotional, social and intellectual development. The Court’s prefer for the direct guidance and care of the child vice a third party like a baby sitter or nanny. So you may be thinking now, how does the financial resources of a parent effect the Court’s analysis?

A parent that makes more money may be able to provide a “better” home and nicer environment however Courts take into consideration the fact that if you are the non-monied spouse, you will also be entitled to child support which will level the playing field. On the other hand, while a third party is not necessarily looked on favorably by the Court, an argument can be made that in today’s environment, both parents need to work and someone may need to watch the child. If you have the financial resources to afford a nanny or day care, that will also be factored into the equation.

LEARNING POINT: The totality of circumstance will decide who gets custody. If custody cannot be worked out between the separating parties, consult an attorney quickly. You must start preparing your case immediately and shoring up your position. You do not want early decisions to have a detrimental effect on your ability to maintain custody of your child.

child custody long island

Modification Of Child Support


As a general proposition, child support can be modified either upward or downward, only if an unreasonable or unanticipated change in circumstances has occurred. The primary concern with regards to child support is the best interest of the children in question. Thus, even if there is a Court order, either in the form of a separation agreement which was merged into an order, or simply an order regarding child support, a parent can petition the Court for a modification. When considering whether to modify child support, the Court will consider the assets, earnings and obligations of the supporting spouse as well as the financial status of the custodial spouse. Unless there has been an unanticipated and unreasonable change in circumstances, the Court will not change the support order. Factors to be considered by the Court include whether increases of expenses were foreseeable at the time the Court originally made the support order. If the expenses were foreseeable at the time the order was decided and the Court deems that the order was fair and equitable at the time the order was made, you may not get a modification.

What will the Court use to determine if a modification is appropriate? The Court will look to: (1) whether the increased needs of the children are due to special circumstances or to the additional activities of growing children; (2) whether there is an increased cost of living which results in a greater expense for the children; (3) was there a loss of income or assets by a parent or substantial improvement of the financial condition of a parent; and (4) the current and prior life styles of the children. If after the Court considers these factors, it deems that there should be a modification of child support, the Court will utilize the Child Support Standards Act to calculate the appropriate level of child support, and whether there should be a deviation of said support. A downward modification of child support is carefully scrutinized since the primary concern is the best interests of the children. Thus, if you are attempting a downward modification, you must show an unanticipated and unreasonable change in circumstances otherwise the court will in all likelihood deny your request.

Word of caution: If you lost your job through no fault of your own, i.e. you were terminated as a result of cut backs, or your boss simply let you go, the Court will take that into consideration when calculating child support. If however, you purposefully lost your job, i.e. you quit or you took another job to lower your income and thus lower your child support payments, the Court may impute income to you. In other words, you were making $100,000.00 and you quit your job and now you are making $50,000.00. If the Court determines that you did this to lower your child support obligations, the Court may award child support award based on the $100,000.00 salary regardless of what you are currently earning. The key determination surrounding your loss of income will be how it happened. If you simply quit your job or, as in a recent case of mine, decided to follow your passion and embarked on a new career, one that decreased your salary by $40,000.00, the Court may not grant your modification request.

Learning Point: Modification of child support will be considered keeping the best interest of the children in the forefront of the Court’s mind. Adequate preparation in showing the Court that there has been a significant change in circumstances warranting the Court to modify a current order providing for child support. A downward modification will be given close scrutiny. Preparation and presentation will be crucial in your attempts to convince a Court to modify your current child support order.