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Articles Posted in Child Support

A divorce is a complicated process that requires the partners involved to answer a lot of crucial questions about theirfuture – 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 thatdivorce 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 ›

Both 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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The 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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In 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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A 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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In 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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New York Domestic Relations Law § 236 (B)(3) sets forth that prenuptial and postnuptial agreements are valid and enforceable if they are in writing, the parties subscribe to them, and they are proven in the way required to entitle a deed to be recorded. The difference between these types of agreements is that prenuptial agreements are entered into before marriage, while postnuptial agreements are entered into after marriage.

The agreement can include, among other things, provisions for the custody, care, maintenance, and education of the parties’ children, subject to Domestic Relations Law § 240. § 240 provides that the court has the discretion to enter custody and support orders as justice requires, based on the circumstances of the case, the parties, and the child’s best interests.

In other words, prenuptial and postnuptial agreements in New York can’t conclusively establish child custody or child support. Postnuptial agreements, made after a child is born, may be influential when they address education, child support, and care. However, judges make a final determination on child custody and support based on the child’s or children’s best interests. The terms of an agreement are only enforced if the terms serve a child’s best interests and needs at the time of the divorce.  A separation agreement, however, which is in proper form, can deal with child custody and child support terms.  The difference between a separation agreement and a postnuptial agreement in this context being that either when the separation agreement is made or very soon thereafter the parties must being living apart and intend to do so.   Of course custody, parenting time and child support terms are properly included and should be part of a stipulation of settlement settling a divorce.

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In cases of paternity in New York,  a child that was born during marriage is legally presumed to be abiological product of that marriage, and this presumption historically was one of the most persuasive in law. However, it’s important to note that this presumption is still subject to the sway of reason, though statements have varied regarding the sufficient evidence required to rebut such a presumption. For instance, in the context of a case wherein a child is born during a marriage, the presumption should not fail unless there is evidence to demand reconsideration. In fact, if a husband and wife live together, legitimacy is often presumed, and even if the couple are living apart, the court can provide a fair basis for the believe that a child was born as a product of times the couple were brought together.

During recent years, case law that enunciates the presumption of legitimacy in paternity cases where a child is born during a marriage has been pulled into question. This isn’t necessarily because the reasoning and logic behind that case law has changed over time, but because the passage of time have delivered new updates in technology and science that make determining legitimacy accurately, more possible. In past cases, one of the primary – if not the only determining factor in the application of a presumption of legitimacy in court was access between the husband and wife. However, as we have progressed further into modern times, DNA tests and blood tests have also acquired a new ability to sway reason. Because of this, while the presumption of legitimacy still serves a laudable purpose, it remains to be just another legal presumption that can be used when conclusive evidence to the contrary is not available.

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Family Court Support Magistrates and Written ObjectionsThere are many complex nuances to consider when evaluating the hurdles and complications of family law – including cases that involve child support and spousal support. Typically, cases of support, are initiated when petitions are filed with your local New York family court, except divorces, which also can have elements of support, are done in the appropriate local Supreme Courts. Family Court support and paternity cases, are assigned to support magistrates. These professionals are responsible for hearing and helping to determine how support will be awarded. They have the power to grant or determine various forms of relief according to the Family Court Act, regarding proceedings that involve support, the enforcement of support, paternity, or matters regarding the Uniform Interstate Family Support Act. Within any applicable case, the support magistrate present will be given the authority to issue summons, decide motions, and deliver subpoenas according to section 153 of the Family Court Act, as well as deciding proceedings according to section 5241 of Civil Practice Law which involves income executions for support.

What Can Support Magistrates Do?

The part that a support magistrate will play in any given court proceeding will depend on the distinct and unique features of each case. For instance, in a proceeding intended to establish paternity, the magistrate must advise both the putative father, and the mother regarding their right to access counsel. In the same circumstances, the magistrate will advise the putative father and the mother of their right to request DNA tests and other genetic marker testing, however these tests are not always appropriate or ordered as detailed below if estoppel or similar circumstances apply. If a genetic marker test is allowed, from that point, the support magistrate will be given the power to determine all matters regarding that proceeding, including the delivery of an order of filiation which officially names a man the father of a child. An order of filiation can allow a father to file for visitation or parenting time with the child, custody of the child in some cases, and, if the father is the non-custodial parent, the responsibility of paying child support. Once the order of filiation has been issued, and child support becomes relevant, the support magistrate will be given authority to make a temporary and/or final order of support. Continue reading ›

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