Articles Posted in Child Support

In a recent post, we discussed New York child support agreements and how the parties to a divorce may be able to agree to the payment and amount of child support Outsidequarrelcouple-300x200rather than have the court make that determination. We also discussed a situation in which the court was likely to set aside a child support agreement. This week, we will take a more in-depth look into how courts view New York child support agreements.

As a general matter, a properly drafted New York child support agreement will remain enforceable over time. However, in reality, circumstances and relationships change, and it is not uncommon for either party to an agreement to ask the court to modify or set aside the agreement if they believe that it is no longer fair to them or to the children subject to the agreement.

The default law (for support orders made nowadays), unless people opt out of them is that either party to a  child support order may seek to modify it:  every three years; if income changes by 15% or more; or there has otherwise been a substantial change of circumstances.  The parties to a properly drafted and executed written stipulation may opt of those first two reasons.  If people have opted out of the default reasons to modify the agreement or the order predated the 2010 child support law, then the Courts will only grant a party’s request for an upward modification (meaning an increase in the child support obligation) if the requesting party can establish one of three circumstances:

  • When it appears that the needs of the child are not being met;
  • There has been an unanticipated change in circumstances, as well as a showing by the moving party that there is a need for modification; or
  • The agreement was unfair or inequitable when it was made.

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While some New York divorces are long, drawn-out, and contentious affairs, others are much more amicable such as when the parties use divorce mediation as theChildSupportMediationCouple-300x200 process. In the latter type of divorce, it is not uncommon for the parties to agree on many of the issues that a court would otherwise need to decide. Among matters that are commonly worked out between divorcing spouses are the division of marital property and the payment of spousal support.

Some couples will also be able to agree on the payment and amount of child support with their divorce mediator or through settlement negotiations. However, because the right to receive child support technically belongs to the children for whom the support benefits, courts retain the final decision over a New York child support agreement.

Under New York Domestic Relations Law section 240, the parties to a child support agreement must aver that the agreement provides the correct amount of child support. If, however, the mediated divorce agreement or settled agreement between the parties deviates from the basic child support amount that would otherwise be appropriate, the parties must explain what the necessary amount of child support would be and why there is a deviation by agreement. Importantly, this cannot be waived by either party.

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As we approach the end of the calendar year, taxes are on everyone’s mind.  Perhaps people are thinking more about taxes than usual because of the passage of the new tax law by Congress at the end of 2017.   To many who have been through a New York divorce or separation, the tax implications of dissolving a marriage are incredibly important and must be part of the overall discussion regarding other issues, such as the division of assets and child custody.

One issue that frequently arises in New York divorce cases is which parent is able to claim a child or children as a dependent for tax purposes. The ability to claim a child as a dependent can have a significant effect on a party’s tax liability.

For the most part, only one person can claim a child as a dependent on their tax return. However, a custodial parent can waive their right to claim certain benefits, such as the child’s personal exemption, the child tax credit, and the tuition and fees deduction. Notably, a custodial parent could still retain the head-of-household filing status, the child and dependent care credit, and the earned income credit. However, according to the IRS, if the parties have multiple children the parties can either agree on how to split up the dependency credits or a court may make that determination.

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In a recent post, we looked at the court’s power – and, in some cases, obligation – to order a DNA test in New York paternity proceedings. New York lawmakers have passed a similar, albeit slightly different, statute establishing when a court must order a DNA test in a New York child support case.Genetic testing can be a crucial part of a child support proceeding when one party disputes paternity. While the over-the-counter DNA testing that has recently become popular to determine an individual’s ethnic heritage has come under fire for its less-than-perfect accuracy, official DNA tests can often determine results with near certainty. That isn’t to say that state-administered tests always return an answer to a paternity question; however, when an answer is returned, the methodologies are such that courts are confident basing important legal decisions on the results.

Under Article 2 section 418 of the New York Consolidated Statutes, “[t]he court, on its own motion or motion of any party, when paternity is contested, shall order the mother, the child and the alleged father to submit to” DNA testing. When the language in the statute is broken down, the following is clear:

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Ever since the time that DNA testing has been recognized as a reliable method of determining paternity, family courts across the country have relied upon the testing to resolve disputes over paternity. Indeed, the New York Family Court Act discusses the availability of DNA testing for the purposes of establishing paternity in section 532.In fact, section 532 requires family law judges or magistrates to advise all parties of their right to request DNA testing in paternity cases, instructing that the court “shall” order testing when any party requests it. That being said, the statute also prohibits DNA testing when the judge determines that testing is not in the best interest of the child based on certain enumerated reasons.

As noted above, parties have a right to a paternity test, and a test will be ordered if any party makes such a request. Additionally, the court can, on its own motion, order paternity testing even if neither party has requested it.

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Divorce or family law issues for unmarried people is a complicated time for any couple, but situations can become far more complex when children are added into the mix. Not only do New York divorce attorneys and the New York Supreme or Family Courts need to determine who should provide care for those children in terms of custody, but they must also decide whether and what child support should be given from a non-custodial parent. If child support is awarded, then the New York Courts may use a range of factors to determine exactly how much should be given. The decision comes from a careful consideration of both the payor’s income, the custodial parent’s income, the child support guideline’s and reasons to deviate from the guidelines.

Before a payor’s income can be used to calculate child support payments, certain deductions may be applied to the total earning potential of the individual. The New York Child Support Standards Act provides a formula based on percentage of income, to determine exactly how much support should be paid. Deviations from the guideline amount of support can be argued or negotiated by family law attorneys or divorce lawyers. The Child Support Standards Act indicates that there are numerous things that can be deducted from a person’s income before the formula is applied, including:

  • Maintenance/ alimony to be paid to the current spouse
  • Maintenance/ alimony paid to a previous spouse
  • Child support paid pursuant to a written agreement or court order for a child for whom the parent already has a duty of care.
  • Supplemental security income
  • Public assistance payments
  • New York City earnings or income taxes paid
  • Federal insurance contributions act taxes paid
  • Unreimbursed employee business expenses

This blog will briefly discuss, what are unreimbursed business employee expenses? Continue reading

In an earlier post, we discussed some of the issues that may arise when a sperm donor seeks to establish the parental rights of a child. One of those issues arises when a sperm donor seeks to establish parental rights. This is complicated by the fact that New York does not generally enforce contracts between sperm donors and the couples using the donor’s sperm on the basis that such contracts are against public policy.This post follows up on that topic with a discussion of a recent case issued by a New York court, which acts as the most recent example of how courts treat the parental rights of sperm donors versus the woman (or family) who gives birth to the child.

The Facts of the Case

A same-sex lesbian couple arranged to have an acquaintance provide them with a sperm sample so that the couple could have a baby. Since the agreement did not go through a sperm bank or a licensed medical professional, the couple drew up their own contract without the assistance of legal advice. The contract waived the donor’s parental rights, as well as any rights to visitation. The contract also waived the couple’s right to seek child support from the donor.

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At some point in a New York divorce case, the court will generally make a child support determination, a spousal support determination, or both. Support determinations can have an enormous effect on both of the parties to the divorce, and the court is supposed to rely on specific information when making them. However, in some cases, a court may rely on information that was not correct, or it may have made a determination without considering all of the relevant information.In such cases, New York family law allows for the adversely affected party (the debtor) to bring this to the court’s attention. Under New York Consolidated Laws, Article 52, section 5241(e), the party can claim that the court’s determination was based on a “mistake of fact.”

A mistake of fact is defined as “an error in the amount of current support or arrears or in the identity of the debtor or that the order of support does not exist or has been vacated.” Most commonly, the mistake is related to the amount of support ordered by the court.

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When a divorce takes place between partners with children, there’s a lot more to consider than just who will maintain custody of the child. One of the standard issues that I address with myclients is who will be able to claim the child as a dependent on their tax returns. After all, the tax credits associated with caring for a child can be substantial and may help a great deal with transitioning to the new life.

As usual I advise that I am not a tax lawyer and therefore for specifics about taxes everyone is advised to consult with tax professionals such as CPAs.  This blog, however, is to outline some of the new concerns, after passage of the tax reform law, that people need to think about regarding children, taxes and child support agreements.  Because of the new tax laws passed in December 2017 in the United States, the rules surrounding tax and support in New York divorces and everywhere will change dramatically, which could lead to more complex discussions between divorcing parties. For instance, in the past, it has been common for the custodial parent to claim for the child.  The parties often make agreements that the non-custodial can claim the children or some of the time claim the child(ren) if he or she was responsible for a significant amount of child support. Now, as my last blog pointed out, that after 2018 maintenance (alimony) payments will no longer be able to be deducted from income for tax purposes, it may be that child support paying party might find the dependent claim more important than in the past for tax purposes.  The deductibility of child support payments is not changing as still child support payments are not deductible for child support purposes and it is not income for the recipient.  Continue reading

While any person’s definition of “family” might be unique to them, it’s important to remember that it’s the court ofNew York’s delineation that matters most when decisions are to be made around child custody, parenting time, and visitation. As a child custody attorney, I’ve been involved with several complex cases around how a child should be supported and raised by people within their family. As I have reminded my clients in the past, up until now, only a “parent” – as dictated by the courts, will be able to petition for visitation or custody according to the outlines of Domestic Relations Law § 70. Perhaps one of the issues that makes this idea so complicated, however, is that Domestic Relations Law § 70 does not define what a “parent” is. This means that the courts need to determine that for themselves.

In issues presented to the courts of New York, except for in the case of “extraordinary circumstances” a parent should prevail over a non-parent in a custody battle. The law, up until now, is that for unmarried couples, partners that have no biological adoptive connection with the child had no standing to seek parenting time and custody. However, extraordinary circumstances like abandonment of the child, surrender of parenting rights, and more can alter the situation. The court of Appeals in New York highlighted the definition of parentage in New York in the case of Alison D. v Virginia M., 572 NE2d 27 (N.Y. 1991). However, this outline has become less applicable in a modern world, where the family relationship is now more varied and complex than ever. The case that presented the previous definition of “parent” was established in 1991, and since then, times have changed significantly. Continue reading