Don Sinkov of talks about the modification clause in a Settlement Agreement and how to use it to adjust the amount of child support as time goes by and income levels change.What happens if you already have an Agreement in place, where support levels were based on previous earnings, but those earnings have now changed substantially for the non-custodial parent.

– Can you modify support levels that were previously agreed to in a Settlement Agreement, even after you are divorced?

– Do you have to go to court?

– Can you come to mediation to address these issues?

The answer is, “No, you don’t have to go to court. You can go to mediation to create a modification clause for your original Agreement.”

When we write Settlement Agreements we specifically include a clause called the modification clause. This clause creates a mechanism that allows you to modify child support every 1 or 2 years, by agreeing to exchange tax returns and adjusting child support either up or down, based on changes in income. If there is no change in income, then you pay a Cost of Living Adjustment (COLA) amount based on the Consumer Price Indices (CPI-U).

The reason we include a modification clause is because we don’t want you to have to go to court. You’ve come to mediation to avoid going to court, but still have a good outcome. The outcome of the mediation will be equal to or better than what you would get in court, and the best part is you don’t have the expense of litigation.

Under the new legislation passed on October 12, 2010, you can only modify child support if:

– There’s a passage of three (3) years since the order was entered, modified or adjusted

– There’s a 15% change in either party’s income since the order was entered, modified or adjusted provided any reduction in income was involuntary and the party

made a diligent effort to secure employment commensurate with his/her education, ability and expertise

The statute goes on to say that if there is a substantial change in circumstance at any point, you can always go to court and attempt to modify child support. But it isn’t easy and if you are getting involved in a court process, you are hiring an attorney and incurring substantial expense.

During the mediation process, adding a modification clause to the Agreement is a standard practice.

“But we didn’t go to mediation. We went to attorneys and don’t have a modification clause in our Agreement allowing us to modify child support ourselves. So, what do we do?”

Even though you didn’t address that in the original Agreement, you can come to mediation. We can write an addendum to your Agreement, allowing you to modify child support yourselves. The modification clause would use the Child Support Standard Act formula (CSSA), considered presumptively correct by the courts.

We know that your income is going to change. This is just another way in which a mediated agreement has a more holistic approach to try to save people money and keep them out of court.

About Don Sinkov

Don Sinkov Your Divorce Mediator Westchester County, NY Putnam County, NY Phone: (914) 588-6258 eMail: