There have been countless occasions when a client, or potential client, asks me – “how can I modify my support?” In these tough economic times, the question usually comes from the person paying support who can no longer afford to pay at the previous level.
My answer to this question is always the same – “It depends. SHOW ME why you can’t afford to pay it anymore.”
The case law is illustrative. A party seeking to modify support must “demonstrate that changed circumstances have substantially impaired” the payor’s ability to meet the previously set obligation (Lepis v. Lepis). The party seeking the modification must file a motion in court, attaching proof of these “changed circumstances.” Thereafter, the court must conduct a hearing if: (1) the party proves a “prima facie” case (translation: case at first blush) of changed circumstances; and (2) there are genuine and substantial issues in dispute.
I recently won an appeal in the Appellate Division, where the trial court denied my client’s request to modify his child support. In Palardy v. Prata, the parties were divorced in 2004. My client agreed to pay $413 per week in child support, which was based upon him earning an optimistic $175,000 per year. Unfortunately, by 2008, he was in arrears. He simply could not find a job that would allow him to meet his own basic expenses, let alone pay $22,000 per year in child support. In December 2009, we filed a cross motion to reduce his child support. We attached tax returns showing that his income from 2004-2007 was substantially less than $175,000 as well as evidence documenting his efforts to obtain better employment.
So, was this enough? The trial court said NO. The Appellate Division said YES. My client should have at least been entitled to a hearing. According to the Appellate Division, the $175,000 per year in income that was the basis of the support award was a “fiction”. Moreover, it was undisputed that my client never earned this amount.
What we take from this case is that documented proof is the key to modifying support – more so than a “fictitious” (or imputed) income figure used to calculate the initial support order. If you are seeking to modify your support, you must be prepared to provide proof of what you claim to be the actual circumstances. Your word isn’t enough.