UPWARD MODIFICATION OF SUPPORT FOR RAPPER NAS: CAN THIS HAPPEN TO YOU?

When Rapper Nas and singer Kelis were divorced, Kelis was awarded support of $40,000 per month. According to the Associated Press, a Los Angles family court judge has ordered Nas to increase support payments from $40,000 to $51,101 per month to Kelis and their son, Knight. This increase was based upon an assessment of Nas' income.

In New York, child support is generally calculated by the formula set forth in the Child Support Standards Act. A percentage of the parties’ combined income up to $80,000 is allocated to child support. In addition, parties may agree to, and courts may impose, additional amounts so as to maintain the standard of living of the children. Once the amount is determined, however, is it set in stone until the emancipation of the children.

Litigants often inquire as to how to obtain increased support under New York State law. New York law does not automatically allow for an upward modification of child support solely based on an increase in the obligor’s financial situation. Actually, it depends on how the child support obligation was created—i.e. was it originated from

A. A court order, or

B. By virtue of an agreement between the parties.

The distinction is crucial because the burden of proof differs based upon how the obligation was created.

A. If child support was determined by a court order, decree or a merged agreement, a modification will only be awarded on a showing of a substantial change of circumstances. Some of the factors considered in determining whether a substantial change of circumstances exists include: the increased needs of the children, the increased cost of living as a result of the children’s expenses, a loss of income or assets by a parents as well as the current lifestyles of the children. In order to prevail on the claim for the upward modification, it must be shown that not only has there been increased expenses, but that the obligor’s income has significantly increased insofar that he/she can afford to pay the needed increase.

On the other hand,

B. If child support was set forth in a settlement agreement (incorporated but not merged into a judgment of divorce) then a much greater burden is required to obtain an upward modification. The rationale is that the parties were able to negotiate the support on their own as opposed to it being imposed on them by a judge. The Court will not modify the obligation unless it can be established that the agreement or stipulation was not fair and equitable when it was entered into, or an unanticipated or unreasonable change in circumstances has occurred resulting in a concomitant showing of need.