Asked about 2 years ago - Manorville, NY
Flagmy x-husband is claiming his business is no longer running therefore he needed to take on a job and therefore asking for a modification.If the mod goes through,who's to say he wont start earning more money again or even start up the business again and I'll be stuck getting less money from the modification.?Do I have to drag him into court every 6 months to ask the courrts to check his earnings? He works off the books alot of the time and I will have no proof.I'm already losing my house to foreclosure because of him not paying me support! We're in court now for arrearage.
New York's current rules allow for a modification petition if a party's income changes by more than 15%. However, the reduction in income is not the end of the discussion. If the court believes that the non custodial parent could be earning more but isn't doing it in order to avoid child support then the court will impute income.
And if you can show a pattern of "off the books" employment then that income can be used as a basis for child support.
It will depend on whether you consent to the new order or it is made without your consent. If its made without your consent or with no opt out language, you can go back the earliest of anytime there is a change of 15% or more in your ex-husband's income or two years from the last court order. A judge may impute income to him based upon his expenses.
Even if you do agree to the new order, you can still go back if there is a substantial change in circumstances.
If the order was done before July 15, 2010 and was based upon a stipulation of settlement incorporated in the Judgment of Divorce, your ex-husband may have an even higher burden to seek a reduction in support.
if he files a modification action, have your lawyer stress his earning potential. In most states you cannot go back in to court but every two years on child support-but each state varies. If you don't have money to file a contempt action on his child support arrears, go to the local child support enforcment office and they will go after him. But they are overwhelmed with cases and it takes a while. It would be best to hire an attorney.
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