Legal Question in Family Law in New York

Re: Help we can't afford child support

You can apply in court for a downward modification of child support which is our legal system's way of referring to a request to reduce

child support. As regards the threat of incarceration: before that happened, a court would be required to provide your fiance with an attorney to defend him, at no cost to your fiance under the "18-b" program.

Note that your fiance's $60 weekly child support payments are already close to the $50 minimum required by law (unless the non-custodial parent's yearly income is below the $9,570 defined as poverty under the 2005 federal guidelines, in which case child support payments could be reduced to $25 weekly).

However, assuming that the numbers you provided in your question are exact, then even if your fiance had not lost his job, he could qualify for a reduction of child support payments down to $50 weekly instead of the $60 weekly he is now oblgated to pay. This is because when you subtract out $60 weekly from $300 weekly, $240 weekly is left, which translates to $12,480 per year which is less than the "self support reserve" which is currently $12,919.50 and earning less than the "self support reserve" can qualify the non-custodial parent to a reduction of child support payments to $50 weekly. (The "self support reserve" is defined by

New York State law as 135% of the current federal guidelines poverty threshold of $9,570.

135% of 9,570 = 12,919.50).

To reduce the child support payments to $25 weekly, your fiance will have to demonstrate that he has been, and is, searching for a job since he lost the last job, and that his status of reduced income is permanent. To reduce child support payments to $25 weekly, your fiance would have to demonstrate that any job he may expect to get would still pay less than the federal poverty guidelines threshold (currently $9,570 per year, it changes every year in March) once the child support payments are subtracted out and that this below poverty guideline status can be expected to be permanent. The $25 weekly child support payment is the absolute minimum set forth by law, although I think I have seen one court's decision where some rationale was found to reduce child support payments to zero.

Please note the following factors:

Check your fiance's Judgment of Divorce from his former spouse. If it is written in the Judment of Divorce that the New York State Supreme Court retains exclusive jurisdiction over further actions, then your fiance can only bring his application for a downward modification of child support to New York Sate Supreme Court; otherwise, he can bring his request for downward modification of child support in New York Sate Family Court.

If you have questions about filling out the paperwork for applying for a "Downward Modification of Child Support", you can contact me by e-mail. I may also be abe to refer your fiance to to various attorneys who provide free assistance.