Articles Posted in Child Support

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Kitchen-Fight-300x200In Nassau County and Suffolk County, as well as the surrounding areas of Long Island and New York, the law generally allows for concurrent jurisdiction in either the Supreme or Family court to tackle issues of spousal or child support for married couples not living together. For a married couple living together, usually, unless it was clear that one of the parents has custody over the other, if one of the parents filed a child support case in family court, the family court would usually dismiss the case and direct that the issue of child support should be the topic in a matrimonial case. Matrimonial cases are dealt with in the Supreme Court.  Proceedings for legal separation or divorce are the most common marital cases, although an annulment proceeding is also a matrimonial case.  The family court does have jurisdiction to hear a child support case for a married couple not living together.

If there isn’t a matrimonial case pending already, spousal support cases can be filed in the family court. This may be true even in a situation where a married couple remains living together, without support for the non-monied spouse. The family court does not have jurisdiction to hear newly filed cases for assistance when a matrimonial case is pending with the Supreme court. However, there’s a general exception to this rule which allows for the filing of a support petition in the family court, even when matrimonial cases are pending if one spouse and the children are likely to become public charges or are already on public assistance.

Examining Spousal Support Cases Before Matrimonial Cases Begin

But what about a situation where a spousal support case is filed in family court, before the filing of a matrimonial claim, but then a matrimonial case is started immediately afterward? We can go to the case law for guidance. Continue reading ›

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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 ›

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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, when an income execution for an employer to take the support direct from the obligor’s pay is made by the support collection unit, the income execution may contain information that was not correct, or it may have not have 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 income was based on a “mistake of fact.”  It should be noted that this process is different than the process for making written objections to the support order itself which is the subject of other articles in this blog and on my website.

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 ›

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