If you delay going to court after an event that changes rights and obligations, you do so at your peril.

In Fortgang v. Fortgang, the parties were divorced in May 2011. Under their stipulation of settlement, the parties agreed that the husband would pay $2,600 per month in basic child support for the parties’ two children. The stipulation provided that this child support obligation would decrease when the parties’ older child became emancipated, but did not provide the reduced amount.

In December 2013, the older child became emancipated, but the husband continued to pay the full child support amount. In November 2015, the parties’ younger child became emancipated, but the husband continued to pay child support for several months thereafter.

In December 2016, in response to motion by the wife, the husband cross-moved, for the first time, to recoup child support overpayments. Suffolk County Supreme Court Justice David T. Reilly granted the husband’s cross motion, and awarded him a money judgment against the wife for $30,422.32 in overpaid child support.


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The Child Support Standards Act authorizes parents to agree to a child support obligation that deviates from the presumptive formula provided in that statute. However, if they are going to deviate from the formula, the parents must state what the obligation would have been if the formula were to be applied, and the reasons why the parties have agreed to deviate.

In its September 26, 2018 decision in Fasano v. Fasano, the Appellate Division, Second Department, held that if one of those reasons no longer applies, such is a “substantial change in circumstances” warranting a new child support determination.

The parties were married in 1993 and have two children together. In October, 2012, the parties entered into a stipulation of settlement of a prior divorce action after which that action was discontinued.

That stipulation provided that although the husband’s monthly child support obligation using the C.S.S.A. calculation would be $1,994.45 on the first $130,000.00 of combined parental income (then, the “cap”) and $2,575.61 on the total combined parental income, the parties had agreed that the husband’s monthly child support obligation would be $1,500.00. The stipulation also provided that there would be no “add-ons” or “additional health costs” added to these child support payments, even though the C.S.S.A. generally provides that each parent’s share of unreimbursed health care expenses is to be prorated in the same proportion as each parent’s income is to the combined parental income.

The stipulation contained an explanation that the deviation from the C.S.S.A. calculation was necessary “to allow the [husband] to retain the marital residence as a place for the children to be with him when they are together” and had “been agreed by the parties to be in the best interests of the children to provide them continuity and stability in their living and educational environments.”


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