Over 30 years of experience in divorce & family law


Did the Appellate Court impose a new element of proof in a downward modification of child support proceeding?
H. Michael Stern, Esq., a New York matrimonial and family law attorney with over 34
years’ experience is wondering whether the Appellate Division First Judicial Department has just imposed a new element of proof in presenting a downward modification of child support case where there was an involuntary termination of employment.

A man with a sign that says "I Lost My Job!! #Covid-19"

In a case recently decided by the Appellate Division First Judicial Department, the Court

was presented with a situation where the applicant was terminated from employment. The applicant was forced to take a job with a reduced salary as he could not find a job with similar pay. The trial Court used the applicant’s reduced self-reported income at the time of trial to fix his child support obligation. The Appellate Court reversed the Supreme Court and imputed income based upon the applicant’s salary history. When a Court imputes income, it disregards the income reported by the party and sets income based upon, among other things, the party’s earning potential. The Appellate Division noted that there was nothing in the trial record which reasonably addressed the applicant’s inability to secure a similar position.

This appears to be a new element of proof and adds to the overall burden of proof for the applicant. Most applicants lack the financial resources to hire a vocational expert witness. Indeed, proving that there are no similar jobs available is a daunting task. One must question if there were similar jobs available and the applicant applied for such jobs and didn’t get any of them, would the application fail due to the higher standard. I am curious if the other Judicial Departments will follow and impose this heavier burden of proof in downward modification cases.

I have been litigating Supreme Court divorce and family law cases for more than three decades. Recent results can be found within the TESTIMONIALS page on this website.

Focusing on the needs of the client and the results sought have always been a hallmark of my Long Island practice over the past 34 years. Feel free to contact me, H. Michael Stern, Esq. a Long Island divorce and family law attorney, if you are interested in discussing your matrimonial, divorce or family law matter please call 516-747-2290.

I am conducting in person, telephone, and virtual video consultations during the pandemic, by appointment.

My office is conveniently located adjacent to the Roosevelt Field Mall Ring Road at 666 Old Country Road, Suite 555, in Garden City, New York.

Written by: H. MICHAEL STERN, Divorce Lawyer Nassau County NY

The above offers general information for educational purposes. It does not provide comprehensive or complete legal analysis. Any information that I provide should not be relied upon as legal advice or legal opinion on any particular facts or circumstances. Outcomes and results described do not mean or suggest that similar results or outcomes can or could be obtained in any other situation. Each legal matter should be considered to be factually unique and subject to varying results. The invitation to contact the author is not a solicitation to provide professional services, nor is it a statement of availability to perform legal services in any jurisdiction other than the State of New York. This is attorney advertising. Prior results do not guarantee future outcomes.