How do I modify child support in New York or get a new or denovo hearing on child support after notice of a COLA increase?

People are free to make arrangements in their settlement agreements concerning the circumstances that would allow for child support to be changed as time moves on from their last child support order.  Absent an agreement, however there are two different methods to try to change child support.  The first, which most people know about, is filing a petition, application, or motion in the Family Court or Supreme Court to modify child support.  The second method, not as widely known, is to serve and file a timely written objection to a notification by the Support Collection Unit of a Cost of Living Adjusted Order.  If a timely written objection is properly made to the notice of the COLA increase or Cost of Living Adjusted Order, the court is required to then determine what child support would be based on current income or circumstances.  This is called a “denovo” hearing on child support. This blog entry is intended to provide a general outline of these two different techniques.  I am a Long Island Child Support Lawyer that handles cases on Long Island and all around the New York City area.  Through experience, research and education, I gained my knowledge and experience with child support.

The law in New York regarding child support is commonly referred to as the Child Support Standards Act and is set forth in both the Domestic Relations Law and the Family Court Act.  As the law stands in New York today, the default rule is that a party to a support order may seek to modify child support if since the last order:  there exists a substantial change in circumstances; three years or more elapsed since the order was entered, modified or an adjustment made; or since the entry, modification, or adjustment of the order either party to the order has had a change to their gross income of fifteen percent or more.  This is the law for cases filed subsequent to the law change in 2010.  For orders that were before the law change, the old standard applies which was that absent an agreement for modifications otherwise, there would need to be a substantial change of circumstances.  It was more challenging to obtain modifications under the old law.    

Both the New York Family Courts and the New York Supreme Courts have concurrent jurisdiction over child support matters.  In a divorce, the Supreme Court can reserve exclusive jurisdiction to handle future matters involving the child support ordered as part of the divorce such as modification or enforcement requests.  If exclusive jurisdiction was reserved in the Supreme Court, a post judgment divorce child support modification case would need to be filed in the Supreme Court.  It is usually done by a motion which is called an Order to Show Cause.  If exclusive jurisdiction was not reserved then the request to modify may either be done in the Family Court or the Supreme Court.  Cases are started in the Family Court by the filing of a petition.

Regardless of the selection of Court, the paperwork must set forth one of the reasons for the modification mentioned above (change of circumstances, the passage of at least three years, or the 15 percent income change).  The case might be dismissed if the proper facts are not set forth.  If the case proceeds, the requesting party must prove the reason alleged for the modification.  Only if this reason is proven should the court determine the new support order.

The second method, the timely written objection to a Cost of Living Adjusted Order, does not require one of the reasons that a modification request needs to proceed.  This route, however, has its own unique set of circumstances that are needed for it to occur.  If someone has an order that is paid through the Support Collection Unit, one of the parties or Support Enforcement can ask that the order be reviewed to see if it qualifies for a cost of living adjustment or a C.O.L.A.  An order needs to be seasoned for at least two years to be eligible for the first COLA increase.  Thereafter in might qualify once a year.  A C.O.L.A. is appropriate if the total of the yearly average changes of the Consumer Price Index for all urban consumers (CPI-U), as set forth by the United States Department of Labor Statistics is ten percent or more.  That’s a confusing mouthful, but, rather than figuring this out for yourself you can contact the Support Collection Unit to see if it qualifies.

If the order qualifies for the adjustment, and a request is made for an adjusted order, the Support Collection Unit will send out notice of what the adjusted order will be.  This starts a clock to file the timely written objections.  Parties have thirty five days from the mailing date of the adjusted order to properly serve and file the objections.  A motion to vacate an adjusted order of support could be made within 45 days after the signing of the adjusted order, if there is an excusable default such as not being served with the notice of the adjusted order, to attempt to interpose the written objection as timely.  If the objections are timely, then the court should schedule the parties to come in to determine what support would be based on current income numbers.  Based on this information the court would then determine whether a new order of support, based on the current numbers needs to be made.

Feel free to call to speak with an experienced matrimonial, family law and child support attorney about your situation.  It would be our pleasure to talk to you about it.

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