New York Family Law Snippets

By David Siegel
The trial court is justified in increasing child support if the needs of the child and the earnings of the supporting parent have increased since the judgment granting child support was entered. Where a former spouse's ability to pay child support is shown, the fact that the children have grown older and the cost of living has risen are proper bases for establishing increased need. The increase in the children's needs must be balanced against the relative ability of the parents to provide for them, and where a change has occurred which creates a substantial imbalance between the child's needs and the parent's support capabilities, modification is required. The increased needs of the child may be established by the child's growing older and the increase in the cost of living established by the expert testimony. New or changed conditions are necessary to warrant a change in support payments, and increased needs of children may be presumed from the fact that children have grown older and the cost of living has risen. An increased in support payments is warranted when the evidence establishes that the needs of the children have increased, and the means of the father have also increased so as to enable him to contribute additional sums to his children's support.

Notice

In General Modification of child support payments can be had only as to those installments accruing subsequent to due notice by the moving party of the motion for modification. Support payments may be modified only as to installments accruing after the party moving for modification has given due notice.

Pleadings

Where petitioner sought modification of divorce decree to compel ex-spouse to support the parties' mentally disabled child after she attained majority; the petition adequately asserted a "change in circumstances" based on the child's continuing handicap after attaining majority; however, it may not have been necessary to plead a "change in circumstances" under this section since there may be a substantive obligation to support a mentally disabled child in 750 ILCS 5/513, unrelated to the terms of any prior divorce decree.

Retroactivity

Child support payments may be modified only as to installments accruing after the party moving for modification has give due notice. A modification for child support 20 years after the divorce could not be applied retroactively. The question of whether modification of child support should be retroactive is within the discretion of the trial court.

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