Whether you have lost your job during the pandemic or your personal financial circumstances have changed, you may be wondering if you are able to modify your child support or spousal support obligations.
In New York spousal support obligations may be modified upon a showing of a substantial change in circumstances.
Child support obligations may be modified under three scenarios: (1) upon a showing of a substantial change in circumstances, (2) if 3 years have passed since the order was entered, last modified or adjusted, or (3) if there has been a change in either party’s gross income by 15% or more since the order was entered, last modified, or adjusted. It is important to note that scenario 2 and 3 above are only available if they were not specifically opted out of in your divorce agreement or stipulation, which many people do opt out of.
So, what constitutes a substantial change in circumstances?
The courts measure a financial change in circumstances by comparing the payor’s current financial circumstances to the payor’s financial circumstances at the time of the divorce or from the time the agreement or order has last been modified.
The issue of whether there has been a substantial change in circumstances is one that is often litigated in the courts and the Judge will look to the specific facts and circumstances of each case to decide. Further, the party seeking the modification has the burden of proving that a substantial change in circumstances has taken place.
So, what does that proof look like?
Loss of employment as a substantial change in circumstances
If you lose your job, will you still be obligated to pay your current support obligation? The answer – it depends.
Although losing a job may seem like a clear substantial change in circumstance, it is not that simple. A mere loss of employment is typically not enough to tip the scale. Rather, the determination by a court to reduce support must be predicated on your capacity to generate income and not just your current employment and economic situation, drawing a distinction from a mere temporary loss of employment. The court will look to the duration that you have been unemployed. If you have only been unemployed for a month, although that loss of income for the month may drastically impact your financial situation, the court would likely see this as a temporary change in circumstances, but not a significant change.
Courts are more likely to find a substantial change of circumstances warranting modification if you are able to demonstrate that your loss of employment was involuntary and through no fault of your own, and you have made diligent, good faith efforts to obtain new employment that is commensurate with your experience and qualifications.[1] Thus, where a payor has only been unemployed for a short time, it is unlikely that a court would find this warrants a modification as diligent efforts could not have yet been made. Further, the court will also look at what the “diligent efforts” to find employment were. For example, if you lose your job in finance and then only show proof of having applied to teaching jobs, the Court will likely not find that good faith efforts to obtain new employment commensurate with your experience and qualifications have been made.[2]
What if you voluntarily decide to leave your job? You of course can leave your job at any time, but the Court will not be so inclined to decrease a support obligation after a loss of employment that is self-created, absent exigent circumstances.[3] Courts have held that where a payor leaves their employment to relocate with a significant other, this constitutes a voluntary loss of employment, and no downward modification is warranted.[4] Although an individual may have good intentions in leaving their current job, such as to start their own business within the same field, the courts will still view this as a voluntary loss of employment.[5]
Where a payor can show that they have used their best efforts to obtain employment commensurate with their qualifications and experiences, the Court is more likely to find that the loss of employment is a significant change of circumstances. There is no clear-cut answer as to what combination of best efforts and duration of unemployment constitutes a significant change in the Court’s eyes. However, what is clear is that the more an individual does to try to remedy the situation, the better the chance of success in obtaining a downward modification.
If you think you have experienced a change in circumstances, it is good practice to consult with experienced attorneys who can better advise you as to your options on how to proceed.
Berkman Bottger Newman & Schein LLP provides experienced counsel and guidance regarding the modification of court orders. To schedule a consultation with one of our New York City divorce attorneys, please call us at (212) 466-6015, or reach out to us through our contact form today. We maintain offices on 5th Avenue in Manhattan, in Westchester, and in Bergen County, NJ.
[1] Holmes v. Holmes, 32 N.Y.S.3d 658 (2d Dept. 2016)
[2] See generally Jurgita C. v. Manuel O., 111 N.Y.S.3d 20, 21 (1st Dept. 2019) (The Court held that the father failed to show that he made diligent efforts to secure employment commensurate with his education, skills, and experience where he spent most of his time establishing and promoting himself as a motivational speaker and coach and spent four months abroad during the relevant period.)
[3] Luther v. Luther, 825 N.Y.S.2d 718, 718 (2d Dept. 2006)
[4] Lindsay v. Lindsay-Lewis, 64 N.Y.S.3d 564, 565 (2d Dept. 2017)
[5] Westwater v. Donnelly, 612 N.Y.S.2d 58 (2d Dept. 1994)