More details to this question:
My ex husband and I went to court to get a modification of support. The judge told us that she had to go by the original divorce papers. Therefore the child support was based on what my ex made in 2005 not what he makes every year since then. It was supposed to be based on his w-2's. The I formation his lawyer gave me at the initial court date showed the breakdown of his income for each year. Based on the 17% that he is to pay for put daughter, he has actually underpaid me for the past several years. Apparently there was nothing in our original divorce papers allowing for modification of child support. Is there anything I can do in order to get the back support without having to go back to court again? I can not afford to pay for attorney fees.
1 ANSWER
It would be helpful to look at the terms of the original divorce judgment, as it would depend on whether Family Court was given "concurrent" jurisdiction to hear matters of child support.
You should also keep in mind that the sole fact that your ex husband made more money during the past several years does not mean you are entitled to what he should have paid based on his increased income. In New York State, it is up to you, as the custodial parent and recipient of child support payments, to file a Petition for Upward Modification of Child Support. Under the law, you can seek upward modification based on a change of circumstances, or if three years have gone by since the entry of the order.
However, your ability to receive the retroactive child support based on your ex husband's increased income is limited only to the date that you file for upward modification. Therefore, you would not be allowed to seek the child support over the last couple of years based on your ex husband's increased income.
Answered on Jul 15th, 2013 at 3:24 PM
Seth D. Schraier, Esq. Law Office of Seth Schraier 3647 Broadway Suite 4G New York, New York 10031 Cell: (914) 907-8632 www.SchraierLaw.com