Covid-19 has had a significant impact on Family Court matters for both practitioners and litigants. Child support may be the most impacted in two specific ways: the first involves initial (“new”) child support matters; and the second involves applications for a downward modification of child support obligations.
On March 20, 2020, Governor Andrew Cuomo issued Executive Order 202.8, which shut down all “non-essential” businesses. All statutory time limits for all legal filings in all procedural laws of the State of New York were tolled.
In light of Governor Cuomo’s Executive Order, on March 22, 2020, Chief Administrative Judge Lawrence K. Marks issued Administrative Order 878/20 prohibiting the filing of all “non-essential” proceedings which were not listed in Schedule A of the Administrative Order. Child support petitions were not listed as an “essential” proceeding.
Prior to this Administrative Order being issued, when someone filed an initial petition seeking child support, an award of child support would be made retroactive to the date of the filing of the petition. Thus, if a litigant filed a petition for child support on April 1, 2020, and the court awarded child support in the amount of $1,000 per month on June 1, 2020, the filing party would not only receive $1,000 going forward from June 1, 2020, but would receive a lump sum amount for the months of April and May (referred to as “arrears” or “retroactive support”). However, now with the courts closed and not accepting new filings, a party seeking child support will have to wait to file a petition for support. Practically speaking, a person’s ability to receive child support prospectively and retroactively is on hold.
Regarding modifications of child support obligations, prior to the aforementioned Administrative Order being issued, a party paying child support would have the ability to file a modification petition seeking a reduction for his or her child support obligation based on the following grounds: (1) a substantial change in circumstances; and, unless the parties “opted out” of the following provisions in a stipulation or agreement, (2) the passage of 3 years from the date of the court order; or (3) a change in either party’s gross income by 15% or more since the date of the order, provided that a reduction of income will not be grounds for modification unless it was involuntary and the party has made diligent efforts to secure employment commensurate with his or her education, ability and experience.
Thus, a party who lost a job through no fault of his or her own would be permitted to file a downward modification petition. As is with the case involving initial child support filings, an order to modify a child support obligation can be made retroactive to the date of the filing of said petition. The court, however, has no authority to reduce any child support arrears accrued prior to the date of filing. Thus, if a litigant is not permitted to file a downward modification petition to reduce the child support obligation because it is now deemed “non-essential”, then that party is still obligated to pay the full amount of child support, and arrears will still accrue, until the party is permitted to file the petition. Given these circumstances, it is suggested that the party make partial payments if he or she is in a position to do so and when the courts reopen file for a downward modification.
By: Richard A. Schioppo
Partner and Managing Attorney of the Family Department at Zimmet Law Group P.C.