When negotiating a divorce settlement agreement, the parties should agree on whether or not all child support-related rights and obligations must be redetermined in the event the periodic basic child support obligation is modified.
Take the recent Appellate Division, Second Department, decision in Walsh v. Walsh. There the parties’ settlement agreement was incorporated, but not merged into their 2014 judgment of divorce. Under that agreement, the father was to pay $500 per month in child support.
After the parties divorced, the father began collecting Social Security benefits in addition to his salary, which caused his income to increase by more than 15%. In their agreement, the parties did not opt out of allowing the court to modify the support order, without requiring a party to allege or demonstrate a substantial change in circumstances, where either party’s gross income changed by 15% or more since the order was entered or modified. The mother petitioned for an upward modification of the father’s child support obligation.
Family Court Suffolk County Support Magistrate Kathryn L. Coward granted the upward modification on the basis of the father’s increased income. Calculating the father’s child support obligation under the Child Support Standards Act, the Magistrate awarded the mother $2,074 per month in child support.
The father objected to the Support Magistrate’s order. Family Court Judge Matthew G. Hughes denied the father’s objections. The father appealed. The Second Department affirmed.
The increase in the father’s income of more than 15% was sufficient, by itself, to permit the Family Court to modify his child support obligation. Further, Magistrate’s determination to modify the father’s support obligation was not an improvident exercise of discretion.
The father additionally objected to the Support Magistrate’s order on the ground that he should have received a credit against his child support obligation for the money that he contributed to his daughter’s college room and board. The Second Department held that the Family Court correctly denied that objection. The stipulation did not provide for such a credit, had separate and distinct sections for child support and college expenses, and categorized college room and board as a college expense rather than as a component of child support.
There are often divorce settlement agreements that follow the C.S.S.A. formula. In that case, continuing to follow the C.S.S.A. in the event of a substantial change in circumstances, or a 15% change of income (if the parties do not opt out of modifying support on that ground), might be anticipated. Here, however, it appears the parties deviated from the formula in their original agreement. It is concerning that the Court then followed the formula without considering the period support obligation’s interrelationship with other quasi-support provisions of the agreement.
It is certainly common for parties to a divorce settlement agreement to trade off rights and obligations. A formula periodic child support obligation may be lowered in favor of an increased spousal maintenance obligation. The child support obligation may be lowered in light of an agreement to pay more college expenses than might otherwise be warranted, or where a parent increases his or her share of health, child care, or activity expenses.
The agreement is not a game of Jenga. Pulling out even one piece may well interfere with the overall settlement plan. The decision in Walsh begins to tell us the rules of the game. To affect other aspects of child support, all aspects should be placed under a single child support article.
What is more, the grounds to modify child support obligations have loosened. A decision should be made whether to set out in the agreement precisely what provisions should be redetermined in the event any of them are modified. Whether a court will follow such a provision is left to be seen. It certainly cannot hurt to put it in the agreement if that is what the parties intend.
Karen G. Silverman, of Commack, represented the mother. Gary P. Field, of Huntington, represented the father.