Legal Question in Family Law in New York

Re: child support modification

In NYS courts, child support sums are calibrated based on the spouse's ACTUAL POTENTIAL ABILITY TO PROVIDE, NOT on that spouse's current financial circumstances. Therefore, to obtain a reduction of your chid support payemnt obligation, (a "DOWNWARD MODIFICATION" of child support is the legal jargon), yes, the judge can find justification based on NYS legal precedents, to compel you to demonstrate that your POTENTIAL income is about the same as your currently reduced income, i.e., the judge is arguably justified in requiring that you document your current diminished physical ability to work.

This is an example of "IMPUTED INCOME", of child support detemined NOT by what the spouse ACTUALLY earns, but what the court estimates that the spouse could POTENTIALLY earn. This is a well established rule in New York State court decisions. For example, in the case In Matter of Duerr v. Cuenin, 720 NYS2d 439 (4th Dept., February 7, 2001), the Family Court's decision to deny the husband a downward modification of his child support obligations was upheld by the Fourth Department. The court reasoned that even though the father's salary had decreased, the father worked in his family's business and that he himself had a role in determining his own salary and thus in the decrease of his own salary.