- A substantial change of circumstances
- That income has changed by 15% or more
- That three or more years has elapsed since the last support order
These default requirements apply unless the parties agreed that they would opt out of options 2 and 3 in a written agreement. If the parties have changed from the default with a written agreement, the language of that document would highlight in which circumstances a modification can be sought.
Before the coronavirus pandemic, it was clear that you could file a request at any time if you had one of the circumstances that would normally apply to the parties to get a child support modification. If a modification was granted, the law is that it would be retroactive to the filing date in court of the petition of application for child support to be modified. This basically means that if you filed for child support to be changed on December 1 and then the court case was decided on February 1 in your favor, the amount due would be recalculated backwards from December 1 (the filing date) forward.
Changes Caused by the COVID-19 Pandemic
Unfortunately, the law isn’t as clear at this time, because of the pandemic. It isn’t immediately clear whether or not the Family Court or the Supreme Court (for post-judgment divorces) will be accepting papers for filing for a child support modification. At the time of writing, there is an order in effect by the New York Courts Chief Administrative Judge. This order provides that no County Clerk or Clerk of the Court shall accept any papers for filing except for those cases listed as essential.
Though spousal support, maintenance, and child support often feel essential to those applying for them, they are not listed as an “essential matter” at this time. However, the court could, in its discretion, deem that any particular case is essential and choose to deal with it. It’s also worth noting that Orders to Show Cause are listed as essential. This means that if there are emergent needs to consider regarding child support, the court may decide to deal with it, and my recommendation would be to file it by Order to Show Cause.
The Governor of New York issued an order suspending statutes of limitations and deadlines to file papers in New York until April 19, 2020. There is a chance that this date may be extended going forward. If the papers aren’t accepted for filing at this time, requests could be made that a retroactive date be included when the papers are filed after the court resumes normal function. It is not yet clear how these cases will be ruled upon later. So, regardless of whether or not the court papers are accepted at this time, it would be important to prepare the applications to either get filed now or to have filed as soon as possible.
During the Coronavirus epidemic income for either side will often change by 15% or more and there certainly might be substantial changes of circumstances. The question is whether a court will rule that the income change or the changes of circumstances are temporary or not. If the change is temporary, then the court might deny the request to change the support order. However, it is possible that a temporary change may be deemed appropriate.
Addressing Changes to Maintenance
You can learn more about maintenance payments and how they can be modified on this blog I previously wrote and am linking to here. The important thing to note here, is that maintenance orders that were agreed upon pursuant to a divorce settlement can only be changed if there is extreme hardship. You could argue that extreme financial hardship caused by this virus is a good reason to modify maintenance. This might be that an ex-spouse for which maintenance ended or is about to end needs it again for example. Perhaps, on the other side, the person paying maintenance might need a break. The rules on modifications are slightly more lenient for cases in which the judge ordered the maintenance after a trial or hearing. It remains in question whether or not the court would deny the application and hold that the temporary situation caused by COVID-19 does not qualify to modify the maintenance award. Once again, temporary relief may be necessary.
The same strategy above would also apply on whether to file a request to modify maintenance terms or not during this difficult time. I would recommend getting the papers ready and trying to file it by Order to Show Cause. If there are extreme financial hardship conditions to consider, then the court may believe the matter is essential and should be dealt with immediately. If your documents are not accepted, or it becomes clear that the courts aren’t accepting these applications immediately, having the paper prepared would make sense to save time when the courts are operating as normal.
It is not clear yet how courts will deal with the retroactivity of the applications yet that are filed after courts resume normal functions. In other words, if a modification of maintenance is granted then will it go backwards to the actual date it is filed or will it go backwards to the date that it would have been filed had it not been for the inability to file during this pandemic.
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