NEW YORK DIVORCE
The issues of modification most often arise after the parties are divorced. Typically, parties seek to modify spousal maintenance, child support and visitation (Parenting Arrangements). Unfortunately, the standards for modification are not uniform but, vary specifically with the area in which relief is sought.
Spousal Maintenance: The ability to modify an award of spousal maintenance either upward or downward will depend on whether it was the result of a judgment, order or surviving agreement. If it is the result of a judgment or order the standard is a substantial change of circumstances. If the maintenance payments are the result of a surviving agreement then there is a higher standard to be met, extreme hardship. The court will normally modify the amount of maintenance irrespective of its source if the recipient is in danger of becoming a public charge.
Child Support: If there is an agreement then the standard for an upward modification of child support is an unreasonable or unanticipated change of circumstances. Basically, this means that the custodial parent must show that the child’s needs cannot be adequately met based on the support currently being received. [The availability for downward modifications depending if the child support is being made under a court order or an agreement between the parties.] The differences are complex and require a discussion with counsel in each case. In any event, the person seeking a downward modification because of a substantial change in financial circumstances, must act promptly and not let unpaid arrears accrue. Because a court cannot cancel accrued child support.
Child support received through the support collection unit is eligible
for bi-annual COLA adjustments if there has been an increase of 10%
or more in the consumer price index.
Custody and Visitation: These provisions may only be modified upon a showing of changed circumstances since the custody/visitation order or agreement took effect. It is not automatically available simply because the non-custodial parent may have remarried or has acquired a greater earning power where he/she can provide more materially. The court in such an inquiry will always look to the “best interests” of the child.