Articles Posted in Child Support

Today’s blog is a blend of some of my prior blogs and/or website articles over the years on child support. As a New Happy-Blue-Sky-Family-300x200York divorce lawyer and family law attorney, one of the most common types of cases I deal with involves the issue of child support. Under the law of New York State, both parents responsible for a child are required to support their child financially until that child turns 21 years old. Regardless of whether the parents have been involved in a divorce or not, they remain financially responsible for their child.

In any divorce or child support case that I encounter as a family law professional, I find that it’s important to outline the details that go into determining how much child support is possible. Child support is a very complicated matter, and if it’s something that you’ve never encountered before, you might find yourself getting confused, or overwhelmed. Here, I’ll talk a look at a few things that you might not know about New York child support. Continue reading

DefaultDivorces in New York follow many of the same procedures as other lawsuits. The plaintiff spouse filing must provide the defendant spouse with notice consisting of a summons and either a copy of the divorce complaint or a notice describing the nature of the lawsuit. Delivering these documents to a defendant is commonly known as service of process. Failing to do this properly can delay a case or even result in its dismissal. Once the defendant has been served, they must file an answer or else risk a default judgment on some or all of the plaintiff’s claims. An interesting question arises when a plaintiff spouse serves a summons with notice—meaning without a copy of the divorce complaint—and the defendant spouse defaults. Does a defaulting spouse have a right to service of the actual complaint? The scant amount of caselaw on the topic, suggests that notice, without the complaint, is sufficient for a divorce but not for issues like custody and support.

New York law requires a plaintiff to file a summons, along with either the complaint or a notice that describes the nature of the complaint. If a plaintiff chooses the latter, known as “summons with notice,” they must file the actual complaint at a later time. The exact deadline depends on how the defendant responds to the lawsuit.

The New York Domestic Relations Law (DRL) and Civil Practice Law & Rules (CPLR) govern service of process in divorce cases. Section 232(a) of the DRL requires a summons to clearly state that it is for an “action for divorce.” Rule 320 of the CPLR states that the defendant has 20 days to respond if they were personally served, or 30 days if they were served by any other means. The plaintiff can seek a default judgment under Rule 3215 and DRL § 211 if the defendant does not file a response with the court clerk.

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In any divorce or child support case that involves children identified as minors, it’s crucial to determine how much support needs to be Lawyer-Presentationprovided to give those children an on-going, and undisrupted lifestyle following a divorce or separation of parents. Child support is often a very complicated issue within divorce cases, and I often remind my clients that the courts of New York must examine a number of crucial factors before determining how much should reasonably be awarded.

Generally, the guideline amount of child support is determined by the parent’s income.  There are a number of factors upon which a deviation from the guideline amount of child support can be based, including, but not limited to:

  • The non-custodial parent’s financial abilities
  • The custodial parent’s earning capacity: Both parents have a duty to support their children, thus the earnings of the custodial parent must also be considered.
  • Other factors that a court might deem appropriate.

Here, we’ll examine the difficulties that can become present during a child support case when it comes to considering combined income in excess of $143,000.00 (the initial cap in 2017, when this blog was written on child support), and the ultimate financial abilities of the paying spouse. In determining parental income, the courts of New York adhere to the Child Supports Standard Act, starting with an evaluation of parent’s “gross” income. Often, this income is evaluated according to the numbers on that individual’s most recent income tax return. Once that gross amount has been considered, the court continues to evaluate potential other compensation including, but not limited to voluntarily deferred, or additional income. Continue reading

A divorce is a complicated process that requires the partners involved to answer a lot of crucial questions about their Young-Couplefuture – from who is going to have custody of the children, to who will pay or receive payments to or from the other if at all. Dividing property in a divorce is generally one of the most contentious issues that need to be resolved before a pair can continue their lives and go their separate ways. Moving through a divorce when, as a couple, you know that you have an outstanding mortgage, can be a huge worry. However, understanding what might happen to your home can help to make the process somewhat less stressful.

Today, we will attempt to examine the question of whether a New York divorce court can order a mortgage to be paid during a pending divorce. However, like most things in divorce law, it’s worth acknowledging that the answer may not be a simple one. Often, when it comes to equitable distribution, maintenance payments, child support and custody / visitation or parenting time maters a range of other concerns in the legal system, there are short and long answers to consider. The short answer is that if a New York court has ordered child support and maintenance to be paid – according to the new law that has taken effect in 2016 – the recipient of that award is intended to use the funds they have received to pay the mortgage and their other expenses where they are living – while the case is pending or Pendente Lite. Continue reading

One fact that presents itself to me time and time again as a family lawyer in New York, and Long Island, is that CoupleMoneyFightdivorce and family law can deliver a wide range of different complications. From issues regarding child custody, equitable distribution, to matters concerned with child support, spousal support and at times, orders of protection, each unique family brings with it specific issues to navigate. One of the most common issues that raises conflict in family law is proving the income of the other parent or a spouse.

Child support, in New York is payable to the residential custodial parent until the children are emancipated.  Spousal support is what a court can award, under appropriate circumstances, when a couple is still married.  Maintenance, f/k/a as alimony is the payment that a spouse makes to another spouse after a divorce or during the process of a divorce. The purpose of this payment is to help the less monied spouse get in a position to be self-supporting. In some cases, spousal support can also be useful for giving supported individuals the finances they need to gain the training they need to earn employment in a new job. In New York, as of 2016, there are guidelines now, based on income, for maintenance, spousal support and child support.

The challenge sometimes becomes, then how does one prove income when the other side of the case is being less than forthright?  This might happen when someone works off the books or is self-employed.

Determining Accurate Income Details

If one or more of the parents or spouses within a case is working off the books, self-employed – working as a business owner, licensed professional, or independent consultant perhaps – then the matter becomes even more complex. Not only do you need to work out the details of maintenance or child support, but you also need to find a way to prove the other parent’s income.  Proving the income is essential because it represents a key factor for the courts to consider when it comes to deciding whether to award spousal support, child support, and attorney fees. If your spouse was a standard employee, then getting the information you needed for spousal support would be simple enough – as you’d be able to simply look at his or her paychecks. However, providing the income of a spouse who is working off the books or is self-employed can be dangerous, as many self-employed people are less than stringent with their deductions and may claim a large amount of expenses. Continue reading

childBoth parents are expected to support their children in New York. Generally, however, a non-custodial parent pays support to a child through the custodial parent. Many feel that child support is predicated on the idea that children should have the same lifestyle after a divorce as they had beforehand, which, as people transition from one household to two, is not always exactly possible.  Child support, however, is not only applicable to divorcing parents.

When a non-custodial parent doesn’t pay court-ordered child support, there are numerous ways for the custodial parent or Support Collection Unit to enforce payments. If a parent is delinquent and owes back child support, that parent is considered to be in arrears. Unpaid arrears, that are reduced to judgment, accumulate interest even if you are paying child support currently.

For support orders entered after August 8, 1987, the Support Collection Unit or the other parent can require a delinquent parent to pay off arrears for 20 years from the date of default, regardless of whether that amount was reduced to a judgment.  When arrears are reduced to a judgment, that judgment then is good for twenty years. The statute of limitations to enforce arrears for orders entered before that date is six years.  Generally, child support obligations terminate automatically when a minor turns 21 years old, although there are instances when they continue, such as by agreement to pay beyond the age of 21 and payments of arrears can continue until the arrears are satisfied, but subject to the above statute of limitations.

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father and childThe New York Family Court processes petitions for child support, establishes new child support orders, and determines whether a modification should be made to an existing child support order.  It is possible to also utilize the Supreme Court to establish, enforce or modify child support, particularly in a divorce or postjudgment divorce case.  Most child support payments in New York are made by a noncustodial parent paid direct to the other parent or through the Support Collection Unit (SCU).

Once the court has issued a child support order requiring the support collection unit to collect payments, the SCU collects and distributes the payments. If the noncustodial parent falls behind in payments, the SCU can enforce the order. Once a parent applies for services, the support order has to be paid through the SCU, and the custodial parent can no longer accept direct payments from a noncustodial parent or informally agree to change the support order. If the noncustodial parent wants to pay the custodial parent directly, the noncustodial parent should either make sure this is reflected in the initial order or file a modification petition subsequently in order to ask that a direct payment be credited to his or her account.

Once child support is ordered, the parent who is required to pay is given a payment instruction sheet, indicating how much to pay and how to make the payments. For parents who work, a notice may be sent to their employer with instructions about taking the child support payments out of the salary and sending them to the Support Collection Unit or SCU. However, these payments can also be taken directly from other income streams, such as unemployment or even a pension. Payments may not be deducted from a worker’s paycheck for a few weeks from the time of the child support order.

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autumn leavesIn New York, parents owe an obligation to pay child support until their child is 21. The child support obligation is usually paid to the other parent. However, for other purposes such as child custody, children become adults at age 18. When a parent-child relationship breaks down, but there is neither abuse nor other facts that would justify an order of protection, a parent can ask the child to leave.  If there is domestic violence, a court might have the child leave via a stay away order of protection.  If this remedy is not sought or available then he or she may need to bring an ejectment action against an adult child.

However, in Kakwani v. Kakwani, a New York District Court considered an analogous situation in which a woman lived with her brother in a family home. The woman’s mother had conveyed the property to her in 2006. The brother married in 2008. The woman continued to live on the property with her brother and sister-in-law. The woman never sought rent from her brother, and he never paid it.

In 2012, however, the woman served a 10-day notice to quit on her sister-in-law, and a few months later in 2013, she filed a petition seeking to evict the sister-in-law only under RPAPL 713 (7) on the ground that she was a mere licensee whose license to occupy the premises had been revoked.

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two-boys-and-a-bug-1545817A noncustodial parent is required to pay child support to a custodial parent in New York until a child is 21 years old. In many cases, this means that support continues to be paid while a child is in college.

Basic child support is calculated based on a formula using initially the first $143,000 (as of 2016, this number changes over time) of both parents’ combined income and a discretionary amount or an amount based on the same formula for income that exceeds $143,000.00. For a noncustodial parent of one child, basic support is their pro-rata share of 17% of that $143,000, a “cap” that changes every two years in addition to any amount ordered above that cap as mentioned above. The percentage changes based on the number of children. However, a child can also receive add-on support if his or her parents’ combined income is beyond that cap, after the court looks at what are called “paragraph f” factors. Under Domestic Relations Law 240 1-b(c)(7), the court can award educational expenses, such as college costs, as an add-on to the basic support.

This type of support is not mandatory, however. When deciding whether to make the award, the court may consider the parents’ financial circumstances, their educational backgrounds, the parents’ history of paying for these types of expenses to the child at issue or other children, and the child’s academic qualifications. However, college expenses usually aren’t awarded before ascertaining whether a particular child will actually attend college.

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father-son-1551312-e1459254785841In New York, child support has a basic component, as well as an added component. The basic support is calculated first by looking at the initial $143,000(known as a “cap” which is current as of 2016) of combined annual parental income. The amount of the cap is adjusted every other year. Income includes gross total income, investment income, and various benefits, such as workers’ compensation, unemployment, or retirement benefits. After adding your income with your co-parent’s income, the court multiplies the total by a percentage per child, which is 17% of the combined parental income for one child, 25% for 29% for three, 31% for four or more, and no less than 35% for five or more children.  The non-custodial parent pays their percentage share of this amount (pro-rata share).  If your combined income with your co-parent is greater than this $143,000 cap, the court may look at whether there should be additional support for the amount of combined income that exceeds $143,000.

However, if you and your co-parent’s combined income is more than $143,000, you can get additional child support beyond what that cap allows if you can establish certain factors known as “paragraph f” factors. The court can use the same formula of taking 17% or the appropriate percentage, or it may make adjustments to the amount of the add-on according to its analysis of the factors.

These factors include the financial resources of you and the other parent and child, the health of the child and any special needs or aptitudes (like learning disabilities), tax consequences, educational needs of one or both of the parents, the standard of living the children would have enjoyed had the parents stayed together, a determination that one parent’s gross income is substantially less than the other’s, any needs of other children for whom a non-custodial parent is providing support, extraordinary expenses like international travel, and other relevant factors. For example, DRL § 240 (1-b)(c)(4) provides that if a custodial parent is either working or going to school in order to be able to work and incurs child care expenses as a result of this, the court can determine reasonable child care expenses to be prorated in the same proportion as each parent’s income is to the combined income. The pro rata share of the child care expenses are separately stated and added to the basic child support as an add-on.

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