If I agreed to wave my right to 31% child support, and agreed to settle with a downward deviation of approximately 20%, can I amend the supreme court order now, and reclaim the 31% in family court?
Divorce / Separation Lawyer
You are not "amending" the supreme court order. Instead you would be filing for an upward modification in Family Court. Whether you would be successful or not would depend upon when your judgment of divorce was entered since the standard to modify the prior court order where there was a stipulation of settlement (incorporated and not merged in the judgment of divorce) was much more difficult prior to October 13, 2010. If the judgment of divorce was entered prior to the above date, you would have to prove either an unanticipated change of circumstances or that the children's needs were not being met.
If your Judgment of Divorce is more recent, the lower standard of substantial change of circumstances would apply. Other factors would depend upon whether there was any waiver language and the financial changes that occurred since the Judgment.
You should consult with an attorney before filing any paperwork
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Family Law Attorney
Whether you can change the agreement depends, in part, upon exactly what you agreed, whether there are provisions in the agreement for future modification, and whether there is a basis to modify due to increased needs of the child. Family Court generally has jurisdiction to modify child support even if the original order was issued in Supreme Court; however, you may also be able to modify it in Supreme Court , again, depending upon your specific circumstances. I suggest you consult with a local attorney as soon as possible to sort out your options. Good luck!
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Ms. Stark has provided an excellent answer and advice.
For those of you who are wondering what the significance is of the magic 10/13/10 date, that's when New York State finally adopted a true "no fault" divorce law, which allows divorce without proving fault of one spouses' wrongdoing such as adultery or abandonment. Prior to that October 2010, the only relatively "non fault" ground was living separate and apart for more than one year pursuant to a written separation agreement filed with the court (or a memorandum summary).
Unfortunately, for those who got divorces under this older separation agreement "conversion" system, and potentially the asker here, the terms of separation agreements incorporated into a pre-2010 divorce decree regarding custody and support are more difficult to change in Family Court.
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