When a couple splits up in a New York divorce, and the couple has children together, the court, or the divorce lawyers involved, must determine whether either of the parties is entitled to child support. If the matter is handled in Family Court, in making this determination, the court looks at New York Family Court Act section 413, which outlines the considerations that must be taken into account when ordering child support. The exact formula is somewhat complicated, but essentially it looks at each parent’s income and the number of children involved.
Once a court makes a determination as to child support, that order will remain in effect unless one of the parties asks the court to reconsider the child support amount. Courts routinely make changes to child support orders based on either party’s changing circumstances. For example, if one of the parents loses a job, that parent may then petition the court to adjust the child support payments they are required to make. A question that often comes up in New York divorce cases is whether the income of a remarried parent’s new spouse can be used when calculating child support payments.
The general rule under New York law is that a step-parent has no obligation to support their step-children. However, there are ways that the income of a step-parent may be relevant to a child support determination. For example, assume parent A and parent B have two children and get divorced. Parent A has custody of the children, and Parent B is ordered to pay child support. Later, Parent B remarries. Normally, when it comes to determining Parent B’s child support obligation, Parent B’s new spouse’s income would not be considered. However, if Parent B has a child with the new spouse, the new spouse’s income may become relevant because the needs of the children that live with the non-custodial parent of the subject children of child support case can be taken into account. According to the statute those children’s needs can be considered to deviate from the guideline amount of child support, but only if the resources available to support the children living with the non-custodial parent are less than the resources available to support the child or children that are the subject of the divorce or post judgement divorce or child support case.
Traditionally, courts would only consider the best interests of the children who are the subjects of the child support order. However, courts have begun to consider the needs of other children when making a child support determination, specifically, the children who are a product of a parent’s new marriage.
A court can impute income to a party to a child support case, which means add income to them for the purpose of the calculation of that party’s share of the child support obligation. Imputation of income can be for a person’s employment history, ability to earn, education or background, or as is relevant in the subject of this blog, for money received from friend’s and relatives. Usually this is done when someone’s account of their own finances is not credible. The court should specifically enumerate where the income imputed comes from and the specific dollar amount assigned to each category.
Importantly, courts will not consider a new spouse’s income in all cases in which there are children of the new marriage or expense payments that the new spouse makes on behalf of the child support payor. The bottom line is that courts may consider a new spouse’s income but do not do so in every case. The issue of child support in a remarriage is a complex one, especially when there are children born into the new marriage. Anyone with questions about New York family law and remarriage should seek the counsel of an experienced New York family law attorney.
Do You Need a Modification to a Child Support Order?
If you are currently receiving or paying child support, and you believe that there should be a modification to the order, contact the Law and Mediation Office of Darren M. Shapiro. I have extensive experience representing clients in a wide range of Nassau County family law issues, including divorce proceedings, child custody and child support matters, and adoptions. We understand that the needs of each client are different and works diligently to customize representation. Call 516-333-6555 to schedule your initial consultation, up to a half hour free, to see if we can help you with your case today.
More Blog Posts:
Opening Statements in Child Custody Trials, Long Island Family Law and Mediation Blog, August 7, 2017
College Costs in Child Support and Divorce in New York, Long Island Family Law and Mediation Blog, September 10, 2017