Upward mod request

[NYBiasedvsMen]

New York.

I am the father, non-custodial parent (joint custody). I have our 2 children 3 days per week.

We opted out of CSSA, I'm paying $671/month.

Ex filed for upward modification. At time of agreement, I made $57780. In 2008 I made $69371. This represents a change of 20%.

Their 2008 1040 shows an income of $12000. According to their financial disclosure, they have a mortgage payment of $1080/month. Not sure how this makes any sense to the court.

I was under the impression that there are primarily two factors the court considers; 1) needs of the children not being met by the current level of support, and 2) significant change of circumstances. While I have had an increase in my salary, there are numerous caselaw findings saying that an increase in income by the non-custodial is not a factor to increase support by itself.

According to the IRS living standards, $671 is more than enough to provide for two children.

Both parties are re-married, and we each have other children with our new spouses (I have two new children, she has one).

What do you see as the likely outcome if this goes to trial? We are in family court presently.

Thanks.

[Ohiogal]

Originally Posted by NYBiasedvsMen

New York.

I am the father, non-custodial parent (joint custody). I have our 2 children 3 days per week.

We opted out of CSSA, I'm paying $671/month.

Ex filed for upward modification. At time of agreement, I made $57780. In 2008 I made $69371. This represents a change of 20%.

Their 2008 1040 shows an income of $12000. According to their financial disclosure, they have a mortgage payment of $1080/month. Not sure how this makes any sense to the court.

I was under the impression that there are primarily two factors the court considers; 1) needs of the children not being met by the current level of support, and 2) significant change of circumstances. While I have had an increase in my salary, there are numerous caselaw findings saying that an increase in income by the non-custodial is not a factor to increase support by itself.

According to the IRS living standards, $671 is more than enough to provide for two children.

Both parties are re-married, and we each have other children with our new spouses (I have two new children, she has one).

What do you see as the likely outcome if this goes to trial? We are in family court presently.

Thanks.

If I were you I would expect child support possibly to increase. You can ask that your ex be imputed with full time minimum wage. The credit for your two children with your new wife may not matter as much as you think.

[LdiJ]

Originally Posted by NYBiasedvsMen

New York.

I am the father, non-custodial parent (joint custody). I have our 2 children 3 days per week.

We opted out of CSSA, I'm paying $671/month.

Ex filed for upward modification. At time of agreement, I made $57780. In 2008 I made $69371. This represents a change of 20%.

Their 2008 1040 shows an income of $12000. According to their financial disclosure, they have a mortgage payment of $1080/month. Not sure how this makes any sense to the court.

I was under the impression that there are primarily two factors the court considers; 1) needs of the children not being met by the current level of support, and 2) significant change of circumstances. While I have had an increase in my salary, there are numerous caselaw findings saying that an increase in income by the non-custodial is not a factor to increase support by itself.

According to the IRS living standards, $671 is more than enough to provide for two children.

Both parties are re-married, and we each have other children with our new spouses (I have two new children, she has one).

What do you see as the likely outcome if this goes to trial? We are in family court presently.

Thanks.

The bolded is not particularly accurate in practise. Generally what happens is child support is recalculated from scratch, based on the current incomes of the parties, as well as the other factors used in the child support calculation.

As OG stated, you may be able to get mom imputed with full time minimum wage.

[NYBiasedvsMen]

I was under the impression that there are primarily two factors the court considers; 1) needs of the children not being met by the current level of support, and 2) significant change of circumstances. While I have had an increase in my salary, there are numerous caselaw findings saying that an increase in income by the non-custodial is not a factor to increase support by itself.

Originally Posted by LdiJ

The bolded is not particularly accurate in practise. Generally what happens is child support is recalculated from scratch, based on the current incomes of the parties, as well as the other factors used in the child support calculation.

As OG stated, you may be able to get mom imputed with full time minimum wage.

This is what I find troubling. "[A]ccurate in practise" should mean what is applied persuant to the law. Here's what NYS DRL 236 says, in part:

"Upon application by either party, the court may annul or modify any prior order or judgment as to maintenance or child support, upon a showing of the recipient's inability to be self-supporting or a substantial change in circumstance ... "

and, from Boden v. Boden (1977), the NYS support courts rely heavily on this, "Unless there has been an unforeseen change in circumstances and a concomitant showing of need, an award for child support in excess of that provided for in the separation agreement should not be made based solely on an increase in cost where the agreement was fair and equitable when entered into (see McMurray v. McMurray, 53 A.D.2d 596-597, 384 N.Y.S.2d 1007, Matter of Best v. Baras, 52 A.D.2d 557, 382 N.Y.S.2d 318; Matter of Klein v. Sheppard, 52 A.D.2d 532, 381 N.Y.S.2d 885)."

I don't see how the court can ignore these two basic guidelines when reviewing a case for modification. Obviously the childrens' needs are being met, and the 'unexpected change in cirucumstance (my increase in income)' would not, by itself, warrant a modification.

Thanks for the feedback.

[BL]

What you are saying is you came to an agreement ?

If so , present your case .

Who in Family court is this in front Of ?

A child support hearing examiner ?

[NYBiasedvsMen]

Originally Posted by BL

What you are saying is you came to an agreement ?

If so , present your case .

Who in Family court is this in front Of ?

A child support hearing examiner ?

What agreement? The only 'agreement' in place is the one entered into during divorce proceedings. I would like to dismiss her current petition for an upward modification.

Currently we are in NY Family Court, a support magistrate. The hearing is scheduled for next month.

[BL]

Originally Posted by NYBiasedvsMen

What agreement? The only 'agreement' in place is the one entered into during divorce proceedings. I would like to dismiss her current petition for an upward modification.

Currently we are in NY Family Court, a support magistrate. The hearing is scheduled for next month.

Provide the court with a print out of what you State the Laws are and request it to be dismissed .

State there was an agreement . Provide a copy of the divorce decree.