Whether you have been divorced for five years or five months, you may ask the courts in New York to modify your divorce decree if circumstances have substantially changed since the time of your divorce. When it comes to child and spousal support, the court considers changes in the financial situation of the spouses. For modification of child custody, the court also considers whether or not changing the custody order is in the best interests of the child.
Either parent may request the court to modify, or change, a child custody or visitation order when the circumstances have substantially changed. New York courts generally attempt to maintain the existing child custody order largely for the benefit of the child. The court has discretion in determining if the circumstances have substantially changed, but New York courts have denied requests to change custody when they were based solely on the wishes of the child or because a parent remarried. In cases where the custodial parent becomes abusive or is otherwise unfit to properly care for the child, the court likely will find it is in the best interests of the child to change the custody arrangement.
Child Support Modification
New York courts may agree to modify child support orders, but the standard used will differ based on whether the original order was made before or after October 13, 2010. Support orders entered before that date are easier to modify -- the parent simply needs to show that a change of circumstances has occurred since the order was established. After that date, parents must show the change of circumstances was substantial; at least three years have passed since the original order; or either parent's income has changed by at least 15 percent. For example, if one parent loses her job, it may be considered a substantial change of circumstances, but a parent getting a modest raise may only lead to a change of support if the original order was entered before October 13, 2010.
Spousal Support Modification
Spousal support may be modified or completely terminated when the financial circumstances of either spouse have changed since the time of the original order. Instances where a court may modify spousal support include cases where one spouse loses a job, suffers a substantial pay cut or retires. Similarly, if the spouse receiving support receives a large inheritance or otherwise increases his income, support may be modified. And, if the paying spouse becomes seriously ill and cannot work, support may be modified or terminated. In New York, the obligation to pay spousal support ends when one spouse remarries, whether or not the spouse's financial circumstances change. Additionally, a divorce settlement may provide that spousal support automatically terminates if a spouse cohabits.
Process for Modification
Before asking the court to change the terms of your original divorce decree, first attempt to reach an agreement with your ex-spouse. You may file a stipulated agreement with the court to make it official and enforceable. If you and your ex-spouse cannot reach an agreement, you may file a petition with the court to modify the original order. The New York state court's website has specific forms to use when seeking to modify child custody, child support or spousal support. The court will schedule a hearing for you to provide evidence as to how the circumstances have changed. As the person requesting the change, you have the burden of convincing the court that circumstances have changed sufficiently to warrant a modification of the original order.