Articles Posted in Child Support

|

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 ›

|

As a divorce mediator and family law lawyer, I know that there are questions people have when bringing an end to amarriage. Though divorce is never easy, it becomes particularly complex when children are involved, as the end of a relationship also means a huge change in family dynamics for all parties. Since the aim of any divorce and child custody agreements should be to come to terms on agreement that preserves the safety and comfort of the child in question, I offer my clients a range of alternative dispute resolution methods to choose from, alongside standard litigation.

I find that many of my clients prefer to use the less-combative strategy of mediation when it comes to making decisions for the benefit of their children. After all, not only does mediation allow both parties within a divorce to come to an agreement that suits either side, but it can also preserve some of the relationship that remains between divorcing couples, which can be key to joint custody and visitation agreements. One of the many important issues I address with my clients during the mediation process, is “child support”, and what that term should mean to both parties involved. Continue reading ›

|

When parents are divorced, they have several concerns they need to think about when it comes to maintaining thebest interests of a child. For instance, they may need to make a decision about parenting time, custody, and visitation, or whether one of the parties should be asked to pay child support to help ensure that the child in question can continue to live a comfortable life after a marriage comes to an end. Importantly, however, it’s worth noting that decisions about child support don’t have to be limited to the discussion that occurs during a divorce.

When I am acting as a mediator it is usually for married divorcing couples.  In that instance I usually find that my clients are most likely to address the concept of child support during mediation and they will make an agreement that eventually will become part of their divorce. However, non-married couples can also come to me to discuss child support through mediation. Continue reading ›

|

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.

Continue reading ›

|

The college application process can be a daunting thing notjust for aspiring students, but also for the parents that hope to support their children’s education. When it comes to children of divorce, the concerns regarding which schools to apply for and what courses to take can extend to additional worries about which parent should be expected to pay the ongoing expense of tuition, room and board, books, travel, and the rest of it.   In New York, the rules regarding college costs for child support cases or following divorce are often impacted by something called the “SUNY” cap. The SUNY cap is a concept commonly used by the New York courts to address the issue of how college education should be paid for. Parental payment for their children’s college isn’t automatic in the state of New York, the trend has been for courts to use a more child-friendly approach to financing college education.

The legislature has codified in the Domestic Relations Law and Family Court Act that courts need to order parents to contribute to a child’s college education, depending on the circumstances at hand, and the child’s best interests.  The cases have held that this determination is done according to the parent’s ability to pay, the expectations the parents had for the children (such as their own educational backgrounds), and the children’s academic abilities. Continue reading ›

|

Today’s blog is a blend of some of my prior blogs and/or website articles over the years on child support. As a NewYork 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 ›

|

Divorces 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.

Continue reading ›

|

In any divorce or child support case that involves children identified as minors, it’s crucial to determine how much support needs to beprovided 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 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 ›

Contact Information
99 Jericho Turnpike #300-G
Jericho, NY 11753
Phone: (516) 333-6555

ATTORNEY ADVERTISING

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.

Please do not include any confidential or sensitive information in a contact form, text message, or voicemail. The contact form sends information by non-encrypted email, which is not secure. Submitting a contact form, sending a text message, making a phone call, or leaving a voicemail does not create an attorney-client relationship.

Copyright © 2024, Law Office of Darren M. Shapiro
JUSTIA Law Firm Blog Design