Effective October 14, 2010, amendments to D.R.L. §236B(9) and F.C.A. §451 go into effect (Laws 2010, chap. 182; Bill #A8952). They require that language be included in divorce settlement agreements to specifically opt out of a newly-created entitlement to a judicial modification of a child support order. Without such language, even a child support order based upon a surviving agreement may be modified either:
- 3 years after the entry of the order; or
- where there has been a 15% change to either parent’s income.
Unless agreements after October 14, 2010 specifically opt out of the applicability of these conditions, a court may modify a child support order when either condition is met.
These two new conditions supplement the ability of a court to modify a child support order, despite a surviving agreement, where there has been a “substantial change in circumstances.” That ground remains.
The amendments apply only to support orders entered on or after October 14, 2010, and to surviving agreements entered on or after that date.
F.C.A. §413-a(2) and Social Services Law §111-n(4) still provide for modification of child support orders where there has been a 10% change in the cost of living, if the custodial parent is in receipt of public assistance or uses child support enforcement services (i.e., a Support Collection Unit).
It is presumed that despite a judicial downward modification of a support order, the custodial parent will still have the right to bring a contract action for the difference between the higher amount of the agreement and the lower amount provided for in the modified order. Sparacio v. Sparacio, 248 A.D.2d 705, 670 N.Y.S.2d 558 (2nd Dept. 1998); Voss v. Voss, 132 A.D.2d 545, 517 N.Y.S.2d 546 (2nd Dept. 1987); Bouklas v. Bouklas, 133 Misc.2d 106, 506 N.Y.S.2d 637 (Sup. Suffolk 1986)
However, if an agreement after October 15, 2010 fails to include the new opt-out language, could that failure be used to signal a loss or waiver of that contract right?