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NY Divorce Essentials
Modification of Child Support Orders

Domestic Relations Law 236(B)(9)
Domestic Relations Law 240(1-b)
Family Court Act 413

By J. Douglas Barics

Revised February 2014

Continued from New York Child Support Part 2: Special Situations.

NY Child Support 3Under current New York child support laws, there is a higher standard to modify child support agreements made before October 14, 2010 than it is to modify child support awards issued after a trial. In 1989, New York changed its child support laws to comply with a federally mandated requirement that each state base child support on a mathematical formula. The exact formula itself was left to each state. Prior to the adoption of the CSSA guidelines, awards of child support were entirely at the court's discretion. In addition, then, as now, many parents settled their differences by entering into a written stipulation of settlement. Most agreements provide that the stipulation will survive the judgment of divorce, and not merge but instead be incorporated by reference. This means that the agreement itself exits as an independent contract along with the judgment, and both parties are bound by the contract and the court order. However, for agreements made on or after October 14, 2010, new rules apply.

Child Support Agreements Made Prior to October 14, 2010

In 1977, the Court of Appeals of New York decided a landmark case of Boden v. Boden, which set the standard for modifying an order of support when the underlying stipulation survives, and was subsequently modified by the Court of Appeals in the 1982 case of Brescia v. Fitts.

In Boden, the mother petitioned for an increase in child support which was in excess in the amount provided in the separation agreement. In reversing the Appellate Division and reinstating the order of the Family Court denying the modification, the Court of Appeals held that "absent a showing of unanticipated and unreasonable change in circumstances, the support provisions of the agreement should not be disturbed." The court continued, holding "[u]nless there has been an unforseen change in circumstances and a concomitant showing of need, and award for child support in excess of that provided for in the separation agreement should not be made soley on an increase in cost where the agreement was fair and equitable when entered into"

The ruling of Boden was subsequently clarified by the Court of Appeals in The Matter of Anne S. Brescia v. Peter C. Fitts, 56 N.Y. 2d 132; 451 N.Y.S.2d 68; 436 N.E. 2d 518 (Court of Appeals, 1982). In Brescia, the Court of Appeals recognized that the Boden decision was being used by lower courts to deny upward modifications of child support, and clarified the holding of Boden by ruling that "the principles enunciated in Boden are not applicable in every case in which increased child support is sought in the face of a separation agreement." In Brescia, the court noted that the petitioner introduced evidence that the child support payments made by the respondent did not adequately meet the children's needs, and concluded that the following factors should be considered when determining whether the children's best interests require an upward modification, the increased needs of the children due to special circumstances, the additional activities of growing children, the increased cost of living insofar as it results in greater expenses for the children, the loss of income or assets by a parent or a substantial improvement in the financial condition of a parent, and the current and prior lifestyles of the children.

It is important to note that since the court in Brescia quoted the Family Court Act section 461. (See footnote 1 in Brescia), the court considered this section in determining what standard to apply for modifying support orders.

Taken together, standards set forth in Boden and Brescia means that when an order of child support exists pursuant to an unmerged stipulation which survives and is incorporated by reference into the order, the support may only be modified upon a showing of unanticipated and unreasonable change in circumstances (Boden). However, if a party seeking an upwards modification can show the needs of the children are not being met, or any other factor as set forth in Brescia, the high standard set forth in Boden need not be met (Brescia).

Both Boden and Brescia involved petitions for an increase in child support over that which was provided in an unmerged stipulation, and both were decided by the enactment of the Child Support Standards Act in 1989. Both cases have remained controlling for both upwards and downward modification, and courts have consistently held parties to the standards set forth in Boden and Bresica.

In 1989, New York adopted the new child support laws, and amended Domestic Relations Law 236B(9)(b), which allows a court to modify existing child support orders. It provides in part, that "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 circumstances or termination of child support awarded pursuant to DRL 240, including financial hardship."

Thus the dual standards for modification was born. In order to modify a support award issued by the court, a showing of a substantial change in circumstances must be met. But when there is an existing agreement, the order may only be modified by a showing of an unanticipated and unreasonable change in circumstances, unless the needs of the children are not being met.

In determining what constitutes an unanticipated change in circumstances, the court will first look to the agreement itself, as illustrated in Dallin v. Dallin, 225 A.D.2d 768; 640 N.Y.S. 148 (2nd Dept. 1996). In this case, the husband appealed from an order denying his objections for his request for a downward modification from a judgment of divorce based on a separation agreement which incorporated but not merged. The the separation agreement provided for a reduction of maintenance if the husband's income dropped below $300,000. The court granted his request for a reduction in maintenance, but denied his request for a downward modification of child support. The court held that his income dropping below $300,000 was not an unanticipated change in circumstances, since the he anticipated it could fall under that amount as evidenced by the provision for the reduction in maintenance.

When a non custodial parent becomes unemployed, the following two cases are illustrative of when the court will grant a reduction of support. In Preischel v. Preischel, 193 A.D.2d 1118, 598 N.Y.S. 2d 642, (4th Dept. 1993) the Appellate Division reversed the Family Court judge' granting of the respondent's objections, and reinstated the hearing examiner's decision to downwardly modify child support based upon the petitioner showing unanticipated and unreasonable change in circumstances. The court noted that the petitioner established that he lost his job through no fault of his own, made diligent efforts to seek employment by sending out over 200 resumes, answering numerous want ads and registering at approximately 15 employment agencies, and was unemployed for approximately 7 months, and that once he found a job, he filed an amended petition.

However, in Heverin v. Heverin 239 A.D.2d 418; 657 N.Y.S.2d 441 (2nd Dept. 1997) the Appellate Division affirmed an order from the Family Court which granted the mother's objections to an order from the Hearing Examiner. In Heverin, the father lost his job through no fault of his own, but nevertheless was not entitled a reduction in child support. The court stated:

"As a party seeking a downward modification of child support, the father had the burden of establishing an unanticipated and unreasonable change in circumstances … Although a loss of employment may constitute such an unanticipated change of circumstances, a downward modification may be denied where the moving party has not made a good faith effort to obtain employment commensurate with his or her qualifications and experience. … Although it is undisputed that the father lost his job as an engineer through no loss of his own, he failed to present any evidence that he use his best efforts to obtain a new position commensurate with his education and skills."

Thus a party seeking to lower a child support order due to a loss of income must show both the drop in income and efforts made to find commensurate employment.

Child Support Agreements Made on or After October 14, 2010

On October 14, 2010, the amendments to the Domestic Relations Law went into effect for child support modifications. Under DRL 236B(9)(b), the standard to modify a child support agreement changed by adding two new basis to modify support agreements. Modifications may be made if (a) more than three years have passed since the agreement was either signed, modified or adjusted, or (b) there is more than a 15% change in either parent's income since the support agreement was signed, modified or adjusted.

Either side may request a modification under these new provisions. If a downward modification is sought, then the party claiming a lower income must show the reduction in income is involuntary, and they have made diligent efforts to find employment.

Incarceration is not an automatic bar for a reduction of child support.

DRL 236B(9)(b) also allows parties to voluntarily opt out of these two basis for modifying child support in a validly executed agreement.


The article "Modification of Child Support Orders in New York" is provided as a free educational service by J. Douglas Barics, attorney at law, and does not constitute legal advice. Legal advice may only come from a qualified attorney who is familiar with the facts and circumstances of a specific case.

If you have any questions or comments, please feel free to contact Mr. Barics at or (631) 864-2600. For more articles and information, please visit

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