If you cannot get your former spouse to increase your support, you will have to make a motion for upward modification. In New York State, the motion usually must be made in the Supreme Court, although if you are only seeking an increase in child support, you can usually make the motion in either the family court or the Supreme Court. If you can persuade your ex to provide a voluntary increase, make sure the agreement is in writing and have an attorney advise you as to certain formalities concerning the document.
The standards for obtaining upward modification vary depending on whether your Decree was based on a settlement agreement which survived and did not merge in the Decree, or whether there was no agreement and the Decree was made after trial. The standards also are different depending upon whether you’re seeking an increase in spousal or child support.
If there was no agreement, or if your agreement merged in and did not survive the Decree, you will have an easier time obtaining upward modification. If you need to modify spousal maintenance, you must show that there has been a substantial change in circumstances since the time of the Decree. An increase in your ex’s income alone is insufficient. Increased costs from inflation alone are also usually insufficient. (These two factors will not usually allow for an increase in child support either.)
However, if you’ve lost your job or become disabled, or if there has been a substantial increase in your financial needs and your former spouse can pay more, you should be able to obtain the increased support. You must provide the court with all of the specifics that justify the increase. In most instances, the court will hold a hearing before determining whether and how much to increase your support.
It is generally easier to get an increase in child support, because the courts must always consider the best interests of children. However, you’ll still have an easier time if the child support payments are being made solely pursuant to your Decree. Generally, you won’t need to show that there has been a significant change in circumstances, because the child has the right to receive adequate support. You need to show that you can’t meet the needs of the children with the financial resources available to you, or that there has been a significant change in circumstances. The examples above which would warrant an increase in spousal support apply equally in the case of child support.
If you can show that the needs of the children are not being met, or that the agreement was not fair when you entered into it, then the courts will provide increased support — if the children’s “best interests’ test is met. Additional factors that can influence a court’s decision are special needs of the children, additional activities of growing children, increased needs due to special circumstances, a loss of income or assets by you, or a substantial improvement in the financial condition of your former spouse, as well as the current and the prior lifestyles of the children. Another example could be that your former spouse substantially reduced the visitation time spent with the children, and this has caused you to incur unanticipated, increased expenses for example, for additional child care.
As for getting an increase in spousal maintenance where your support is governed only by your agreement: under New York’s Equitable Distribution laws, the courts cannot modify spousal maintenance unless you show that you will suffer extreme hardship — and this really does mean extreme — without an increase in support. Another law in New York will require the former spouse to pay more support if you are in danger of “becoming a public charge”, i.e., going on welfare. Of course, your former spouse must be able to pay under any of the circumstances I have discussed.
It’s important to know whether your support payments are based upon a Divorce Decree alone or whether your Decree was based only upon an agreement, because in the latter case, virtually all of your (and your children’s) rights arise from the agreement, which is a contract. Contracts usually cannot be modified, except in this special area of the law and to the extent discussed above. Decrees and judgments, however, are almost always modifiable.
Susan Y. Kunstler’s New York City law firm has represented women and men in all areas of matrimonial and family law, including tax issues, for more than 25 years. She lectures, chairs bar association committees and presents programs in the field.