Under current New York Child Support laws, there is a higher standard to modify child support agreements than it is to modify child support awards issued after a trial.
The Domestic Relations Law and Family Court Act that governs the modification of child support orders are conformed so that modification may only be based on a “substantial change in circumstances”.
According to DRL 236 B(9)(b)(2) and the Low Income Support Obligation and Performance Improvement Act of 2010, a “substantial change in circumstances” means that the following bases must be met for either an upward or downward modification of child support:
- The passage of three years since the original order was entered, last modified or adjusted.
- A 15% change in either party’s income since the order was first entered, last modified or adjusted. Any reduction in income must be involuntary and the party whose income has been reduced must have made diligent attempts to secure employment commensurate with his or her education, ability and experience.
- Neither of these rules are applicable where the parties “opt out” of this modification provision in a surviving, validly executed, agreement or stipulation
DRL §236 B-9(b)(2) also provides that incarceration shall not be a bar to finding a substantial change in circumstances provided such incarceration is not the result of a non-payment of child support order, or an offense against the custodial parent or child who is the subject of the order of judgment.