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Articles: Divorce and Matrimonial Law

How to Modify Child Support Agreements and Orders

By J. Douglas Barics
Updated August 2019

1. Modifications of Child Support Agreements and Orders

The standards to modify a child support agreement will depend on the date of the agreement. There is a higher standard to modify child support agreements made before October 14, 2010 than it is to modify one that was entered into after that date. But when no agreement exists and the support is determined by the Court, another standard applies.

In order to understand the differences in the standards an understanding of how orders are arrived at is important.

When a court sets an order of support following a hearing, there is only an order.

But when the parties make an agreement, the agreement usually exists as a separate contract that goes along with the order which arises out of the agreement. The exception is when there is a provision that "merges" the contract with the order. Most agreements provide that it is "not merged" and still exists as a separate legal instrument.


2. Modification of Child Support when the Order of Support Exists without an Agreement

In 1989, New York adopted the new child support laws, and amended Domestic Relations Law 236B(9)(b), which set the statutory standard which allows a court to modify existing child support orders. It provides in part, that "upon application by either party, the court may annul or modify any prior order or judgment as to maintenance or child support, upon a showing of the recipient's inability to be self supporting or a substantial change in circumstances or termination of child support awarded pursuant to DRL 240, including financial hardship."

However, this provision applies only to orders. It does not address when there is a corresponding agreement of child support that remains a separate contract outside the order.


3. Modification of Child Support Agreements Made Prior to October 14, 2010

Prior to 1989, the was no statutory formula to determine child support, and the amount of support was either based on an agreement or set by the Court. When the parties did agree, the question as to when these voluntary agreements could be modified arouse.

This issue was first decided in 1977, when the Court of Appeals decided the landmark case of Boden v. Boden. In Boden, the state's highest court set a high standard the standard for modifying an agreement. This standard was significantly lowered five years later when the Court of Appeals decided the case of Brescia v. Fitts, which held that despite the prior holding of Boden, they really meant to say something else.


4. The Boden and Brescia Standards to Modify Child Support

Both Boden and Brescia must be read in conjunction to understand the rule of law. Boden and Brescia remain good law and their combined standard to modify child support still applies. The 2010 amendments expanded this standard, it did not replace it, and it is certainly possible when a modification under Boden and Brescia is appropriate.

In Boden, the parties had made a child support agreement. The mother petitioned for an increase in child support which was higher than the agreed upon amount. The Family Court denied the request to increase the support and the mother appealed. The Appellate Division reversed the Family Court and granted an increase. The case was appealed to the Court of Appeals, which reversed the Appellate Division and reinstated the Family Court's order which denied the increase.

In doing so, the Court of Appeals held that held that "absent a showing of unanticipated and unreasonable change in circumstances, the support provisions of the agreement should not be disturbed." The court continued, holding "[u]nless there has been an unforseen change in circumstances and a concomitant showing of need, and award for child support in excess of that provided for in the separation agreement should not be made solely on an increase in cost where the agreement was fair and equitable when entered into"

The Boden rule made it extremely difficult to obtain increases in child support to such an extent that the Court of Appeals took another modification case to clarify what they meant to say.

That case was the 1982 case of The Matter of Anne S. Brescia v. Peter C. Fitts, 56 N.Y. 2d 132; 451 N.Y.S.2d 68; 436 N.E. 2d 518 (Court of Appeals, 1982). In Brescia, the Court of Appeals recognized that the Boden decision was being used by lower courts to deny upward modifications of child support, and clarified the holding of Boden by ruling that "the principles enunciated in Boden are not applicable in every case in which increased child support is sought in the face of a separation agreement." In Brescia, the court noted that the petitioner introduced evidence that the child support payments made by the respondent did not adequately meet the children's needs, and concluded that the following factors should be considered when determining whether the children's best interests require an upward modification, the increased needs of the children due to special circumstances, the additional activities of growing children, the increased cost of living insofar as it results in greater expenses for the children, the loss of income or assets by a parent or a substantial improvement in the financial condition of a parent, and the current and prior lifestyles of the children.

It is important to note that since the court in Brescia quoted the Family Court Act section 461. (See footnote 1 in Brescia), the court considered this section in determining what standard to apply for modifying support orders.

Taken together, standards set forth in Boden and Brescia means that when an order of child support exists pursuant to an unmerged stipulation which survives and is incorporated by reference into the order, the support may only be modified upon a showing of unanticipated and unreasonable change in circumstances (Boden). However, if a party seeking an upwards modification can show the needs of the children are not being met, or any other factor as set forth in Brescia, the high standard set forth in Boden need not be met (Brescia).

Both Boden and Brescia involved petitions for an increase in child support over that which was provided in an unmerged stipulation, and both were decided by the enactment of the Child Support Standards Act in 1989. Both cases have remained controlling for both upwards and downward modification, and courts have consistently held parties to the standards set forth in Boden and Bresica.

Thus the dual standards for modification was born. In order to modify a support award issued by the court, a showing of a substantial change in circumstances must be met. But when there is an existing agreement, the order may only be modified by a showing of an unanticipated and unreasonable change in circumstances, unless the needs of the children are not being met.

In determining what constitutes an unanticipated change in circumstances, the court will first look to the agreement itself, as illustrated in Dallin v. Dallin, 225 A.D.2d 768; 640 N.Y.S. 148 (2nd Dept. 1996). In this case, the husband appealed from an order denying his objections for his request for a downward modification from a judgment of divorce based on a separation agreement which incorporated but not merged. The the separation agreement provided for a reduction of maintenance if the husband's income dropped below $300,000. The court granted his request for a reduction in maintenance, but denied his request for a downward modification of child support. The court held that his income dropping below $300,000 was not an unanticipated change in circumstances, since the he anticipated it could fall under that amount as evidenced by the provision for the reduction in maintenance.

When a non custodial parent becomes unemployed, the following two cases are illustrative of when the court will grant a reduction of support. In Preischel v. Preischel, 193 A.D.2d 1118, 598 N.Y.S. 2d 642, (4th Dept. 1993) the Appellate Division reversed the Family Court judge' granting of the respondent's objections, and reinstated the hearing examiner's decision to downwardly modify child support based upon the petitioner showing unanticipated and unreasonable change in circumstances. The court noted that the petitioner established that he lost his job through no fault of his own, made diligent efforts to seek employment by sending out over 200 resumes, answering numerous want ads and registering at approximately 15 employment agencies, and was unemployed for approximately 7½ months, and that once he found a job, he filed an amended petition.

However, in Heverin v. Heverin 239 A.D.2d 418; 657 N.Y.S.2d 441 (2nd Dept. 1997) the Appellate Division affirmed an order from the Family Court which granted the mother's objections to an order from the Hearing Examiner. In Heverin, the father lost his job through no fault of his own, but nevertheless was not entitled a reduction in child support. The court stated:

"As a party seeking a downward modification of child support, the father had the burden of establishing an unanticipated and unreasonable change in circumstances … Although a loss of employment may constitute such an unanticipated change of circumstances, a downward modification may be denied where the moving party has not made a good faith effort to obtain employment commensurate with his or her qualifications and experience. … Although it is undisputed that the father lost his job as an engineer through no loss of his own, he failed to present any evidence that he use his best efforts to obtain a new position commensurate with his education and skills."

Thus a party seeking to lower a child support order due to a loss of income must show both the drop in income and efforts made to find commensurate employment. Proof of these efforts include a resume, a job search journal, and other proof that good faith efforts are being made to find suitable employment.


5. Modification of Child Support Agreements Made on or After October 14, 2010

On October 14, 2010, the amendments to the Domestic Relations Law went into effect for child support modifications. Under DRL 236B(9)(b), the standard to modify a child support agreement changed by adding two new basis to modify support agreements. Modifications may be made if:

  1. more than three years have passed since the agreement was either signed, modified or adjusted, or
  2. there is more than a 15% change in either parent's income since the support agreement was signed, modified or adjusted.

Either side may request a modification under these new provisions, and these provisions are in addition to modifications made under the Boden and Brescia standard. If a downward modification is sought, then the party claiming a lower income must show the reduction in income is involuntary, and they have made diligent efforts to find employment.

DRL 236B(9)(b) also allows parties to voluntarily opt out of these two basis for modifying child support in a validly executed agreement and use a different standard for future modifications.

About J. Douglas Barics
J. Douglas Barics is a divorce lawyer located in Commack NY who regularly represents individuals in all divorce and family law matters.

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Disclaimer: The article "How to Modify Child Support Agreements and Orders" is provided as a free educational service and does not constitute legal advice.  For more information see the full disclaimer.