If you are unable to pay child support, then you need to assess whether you can file a petition for the modification of the current child support order. Pursuant to NY Family Court Act 451 (3) “(a) The court may modify an order of child support . . . upon a showing of a substantial change in circumstances. Incarceration shall not be a bar . . . provided such incarceration is not the result of non-payment of a child support order, or an offense against the custodial parent or child who is the subject of the order or judgment. (b) . . . the court may modify an order of child support where: (i) three years have passed since the order was entered, last modified or adjusted; or (ii) there has been a change in either party’s gross income by fifteen percent or more since the order was entered, last modified, or adjusted. A reduction in income shall not be considered as a ground for modification unless it was involuntary and the party has made diligent attempts to secure employment commensurate with his or her education, ability, and experience.” NY Family Court Act 451(3)(a-b).
If you meet the criteria specified above, then you can immediately file a petition seeking a reduction of the current court-ordered child support obligation. It is important that you file as soon as possible because if the court ultimately determines that your current child support obligation should be lowered, then it will be retroactive to the date the petition was filed in court.
Once the petition is filed, you will get a court date, and the other party will be served with the petition prior to the court appearance. You should take all your documents to the court appearance that supports your position as to why you cannot afford to pay the current child support order. Some examples of such documents are letters from past employers, prior tax returns with W-2’s or 1099’s, recent pay stubs, and a completed financial disclosure affidavit which is signed and notarized by yourself. If you own your own business, then you should take all documents relating to the business some of which includes proof of income and expenses, and prior tax returns. If you are currently not working, then take documents showing that you are actively looking for a job and any documents you may have if you applied for unemployment.
If you are unable to pay child support due to COVID-19, then what should you do? Some things to consider are
- How long were you employed by your employer?
- Will you get your job back once the economy reopens?
- Have you applied for unemployment?
- Do you know if you are eligible to receive funds from the government, i.e., the $1,200 stimulus check?
- Do you have any family members that can loan you money?
- Do you have any savings that you can use to pay child support?
- Can you reach an agreement with the other parent where you will have some time to pay the back support before they file a violation petition in court?
- Will you get a tax refund for 2019?
- Did you file your 2019 tax return?
Next, you should consider whether your case falls into one of the categories set forth above.
It might be difficult to determine whether your case falls into one of the categories, so it might be beneficial to speak with an attorney. Jayson Lutzky gives free consultations and can be reached at 718-329-9500. He has been practicing law for over 36 years in the Bronx and can help you with your legal matter. During this COVID-19 pandemic, an electronic meeting can be scheduled at your convenience via Skype, Zoom, or FaceTime.