New York State's Fourth Department recently sent a stern
message to those who are unemployed: "Don't expect relief from your support
obligations if you were terminated due to your own misconduct."
In Marcera v. Marcera,
the Fourth Department held that a father could not be released from spousal
support obligations, nor could he be required to pay a mere $25 a month in
child support, when that father was unemployed due to his own wrongdoing. 87 A.D.3d 1276 (4th Dept. 2011). "To the extent that defendant's financial
hardship is the result of his own wrongful conduct," the Court wrote, "he is
not entitled to a reduction in his obligation to pay child support, nor is he
entitled to evade his obligation to pay maintenance." Id.
A petition for downward modification of child support is
particularly unlikely to succeed if the payer parent lost their job "for
cause". If a court finds that a party
was terminated due to his or her own misconduct, it is very likely that the
court will refuse to consider any request for downward modification. In short, one cannot benefit from his or her
In addition, a payer seeking a
reduction of child support must also demonstrate that he or she has made
diligent efforts to find new employment.
In the case Greene v. Hanson,
100 A.D.3d 1558 (4th Dept. 2012), the court ruled that the payer-father failed
to demonstrate a substantial change in circumstances that would justify a
downward modification of his support obligation because he presented no
evidence establishing that he diligently sought re-employment commensurate with
his former employment.
decisions in Marcera and Greene reflect a trend among New York courts to
impose an onerous evidentiary burden upon payers who seek to reduce their child
support obligations as a result of disruptions in employment.
By: Marc A. Rapaport and Dennis Groves
All Rights Reserved
Rapaport Law Firm, PLLChttp://www.rapaportlaw.com