In this case, upon divorce, the mother was awarded sole custody of the couple’s child and the father was ordered to pay child support. After losing his job, the father requested a reduction in child support payments. His request was denied by the Support Magistrate.
In New York the court will consider modification in child support if at least 3 years have passed since the original order, if income of either parent has changed by at least 15%, or if there has been some other change of circumstances. Family Court Act § 451(3)(b). One reason that a parent’s income would decrease is a loss of job. There have been instances in which parents have actually quit their jobs or intentionally contributed to the loss of their jobs in order to get out of paying child support. That will not work in New York. The obligation to pay child support and a child support order will not be modified if a parent job loss was due to his or her own actions. Furthermore, even if the job loss was involuntary, the parent is required to diligently seek another job. If not, then the court will not consider a modification of the child support order and in will be imputed.
In Vetrano v. Vetrano, the father petitioned the court for a downward modification, alleging that he was wrongfully terminated from his job and that he was not able to find comparable employment. As a result, his income decreased more than 15% from the date of the original child support order, which was more than three years ago. In addition, the father alleged that the mother’s income had increased by more than 15%. On its face, the father’s petition presented a prima facie case of changed circumstances such that a downward modification in child support was warranted. However, the Support Magistrate dismissed the father’s petition concluding that the father had not shown that the loss of his job was not his own fault and that he had been diligently searching for a new job. When the Family Court denied the father’s objections to the Support Magistrate’s decision, the father appealed to the Supreme Court.
While the Supreme Court agreed that the father had not provided sufficient evidence that his loss of employment was involuntary and that he had diligently sought a job, the court also found that there were relevant factors that the court did not take into consideration. For example, the court noted that the Support Magistrate did not consider the father’s loss of assets or the significant increase in the mother’s income. Both of these factors warranted a new determination in the child support obligations. Thus, the Supreme Court concluded that the Family Court should have granted the father’s objections to the Support Magistrate’s decision.
While it may seem as if a parent who loses a job would automatically be exempt from paying child support, this is not the case at all. Once an order to pay child support is in place, it can only be changed by another court order. A parent who stops paying child support or pays less than ordered, will accumulate an arrearage which must be paid. If a parent gets significantly behind, then that parent could be arrested, could have his (or her) driving privileges suspended, his property can be seized, his passport application can be denied, and he could face other penalties. If you feel that you are entitled to a downward modification in your child support obligation, it is important that you file a petition with Family Court. In the meantime, you have a legal obligation to continue to pay the full amount required by the existing order.