Building in Modifications to Child Support

May 1, 2019

{3:00 minutes to read} One of the things you will be asked to address in mediation is what, if any, changes will be made to child support.

In a previous post, I wrote about New York’s statute that would permit parties to file for a modification for support under certain circumstances. But, if you’re mediating now, you certainly would want to avoid having to go to court to modify child support in the future. It’s best to include the changes to support that you agree to make when you are drafting your initial separation agreement. Some of the things to consider:

How long child support will be paid:

A child graduating from college in two years is a different situation than if a child is six years old. You may be willing to keep the amount of support stable for an older child and want to build in more frequent changes if a child is younger.

How you will make the recalculation:

If you both have W2 incomes, you can make a new calculation at the agreed upon time or event under the Child Support Standards Act (CSSA) based upon your incomes at that time. Your agreement can include language about how to make the calculation and the cap that you agree to use. If that is too confusing, you can find the formula online as well; just be sure to make the proper deductions.

If one or both parties’ incomes are difficult to determine:

If someone is self-employed or under-employed, calculating child support initially can be challenging, and even more daunting if you are trying to do it 3 years after you are separated. In a situation like this, you may have agreed to use a certain income for child support purposes even though the taxable income is different.

For the future, you may consider making modifications to child support based upon a certain percentage rather than one based upon a new calculation under the CSSA based upon income.

Sharing information about your income:

When you agree to modify child support with a CSSA calculation, recognize that you will need to exchange your income tax returns along with the relevant attachments to verify your income. Your agreement will provide how this is to be done in terms of the timing so it’s clear what your obligation is and for how long you will need to exchange your income information.

It’s not uncommon for an agreement to provide that child support will be modified if there is an increase to income of a certain percentage and/or every three years. In this case, you are relying upon the other person to voluntarily disclose an increase.

If you have concerns that your spouse may not be forthright about saying when he/she received an income increase, you can simply exchange tax returns every year. If that is not acceptable to both of you, you can instead exchange income tax returns every three years and provide that any increase in income will be retroactive to the date of the increase, plus interest. So, when you finally receive the return in three years, you will be entitled to the increase as it should have been paid, plus interest.

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