Child & Spousal Support
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How does the Court determine how much child support a parent must pay?
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What if the non-custodial parent is unemployed or underemployed?
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What happens if the non-custodial parent works off-the-books?
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Can the parents agree to a different amount?
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Does the judge have any discretion when establishing a child support obligation?
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What other forms of support will the Court direct?
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How do I file for child support or spousal support?
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When will the child support obligation become effective? Can I get child support retroactive to the birth of the child?
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At what age does child support cease?
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If the parents equally share custody of the child, or they each have custody of one child, do either of them have to pay child support?
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What can I do to collect past-due child support or spousal support?
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If the non-custodial parent earns more (or less) now, will his/her child support obligation increase (or decrease)?
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I have a child support order against me, but now my child has moved in with me. Can I stop paying child support?
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What can I do if I disagree with the decision of the Support Magistrate?
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How does the Court determine how much child support a parent must pay?
The New York law which governs the support of children is referred to as the Child Support Standards Act (“CSSA”). According to the CSSA, the basic child support obligation is determined as a percentage of the non-custodial parent’s income less certain deductions, most commonly FICA (Social Security and Medicare taxes). The percentages are 17% for one child, 25% for two children, 29% for three children, 31% for four children and at least 35% for five or more children. However, the formula is adjusted for parents with income below the self-support reserve or the poverty income guideline amount. Although the CSSA contains an income “ceiling” of $80,000 beyond which child support can be based on a factor analysis, instead of a percentage of income, in practice the courts commonly apply the percentages to income and ignore the factor analysis until income exceeds $175,000 per year.
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What if the non-custodial parent is unemployed or underemployed?
Unemployed and underemployed individuals will usually be directed to pay child support based on their earning capacity. Although the CSSA provides for this “imputation” of income in situations where the individual is attempting to avoid a support obligation by becoming or remaining un- or underemployed, in practice the courts are not likely to consider the rationale and will simply order child support based on what the court believes someone should be earning. In defense, an individual who has honestly fallen on hard times must establish diligent efforts to find the former level of employment. If unemployment is the result of a disabling injury, expert testimony may be needed to establish both the disability and its effect on the person’s ability to earn.
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What happens if the non-custodial parent works off-the-books?
Proving actual income can be difficult in situations where the custodial parent is not familiar with the finances of the non-custodial parent. However, if the custodial parent can prove what the actual expenses of the non-custodial parent are, the court will impute income based on what the non-custodial parent is spending each month to support their lifestyle. Familiarity can be a double-edged sword, however. If the custodial parent has recently filed a joint income tax return with the non-custodial parent in which reported income is lower than actual income, the custodial parent may be held to have admitted the lower figure because they signed the joint tax return. For the non-custodial spouse to argue otherwise may invite a report by the court to the IRS and NYS Tax and Finance of under-reported income by both spouses, which is a felony.
In situations where there is no evidence of what the non-custodial parent earns, the court will base child support on the demonstrated needs of the child. [back to top]
Can the parents agree to a different amount?
The parties are free to enter into a stipulation (agreement) in which the child support agreed upon is more or less than the CSSA basic child support obligation. The agreement must contain certain language showing that the parties were aware of what the support would have been had they used the CSSA percentages, and the “deviation” from this CSSA amount must be adequately explained by reference to a factor analysis that is found in the CSSA. Caution must be exercised in reducing the amount of support too far below what the CSSA percentages prescribe. The courts retain an ancient prerogative (“parens patriae”) to supervise and reject any settlement that does not adequately provide for the children’s needs.
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Does the judge have any discretion when establishing a child support obligation?
Contrary to what many believe, the courts are free to determine an amount of child support that is different from the CSSA basic child support obligation, if that amount is “unjust or inappropriate.” To do so, the court must issue a written order explaining the deviation from the basic child support obligation by listing the factors it considered and the reasons that the court did not order percentage-based child support. The statute contains a list of nine enumerated factors, one or more of which can be the basis of the deviation. In practice, however, it is rare for a court to consider the percentage-based basic child support obligation to be “unjust or inappropriate.”
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What other forms of support will the Court direct?
In addition to periodic payments of child support, the Court can direct the parents to pay a pro rata share of the cost to provide medical insurance for the child, the child’s uncovered medical expenses, as well as child care and education costs. When added to the basic child support obligation, these additional or “ancillary” support obligations can be quite expensive.
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How do I file for child support or spousal support?
If you do not have a matrimonial action pending in the Supreme Court, you can file for child support and/or spousal support in the Family Court. If you are in the midst of a divorce or separation action, child support and spousal support/maintenance will be determined in that action.
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When will the child support obligation become effective? Can I get child support retroactive to the birth of the child?
Child support is retroactive to the date that you filed your request with the Court, not the birth of the child. However, if the custodial parent was receiving social services, the County Department of Social Services can sue the non-custodial parent for child support retroactive to the date that the child became eligible for services. Also, if the child was born out of wedlock, the mother can bring a paternity proceeding in which the father will be required to pay for all or a portion of her pregnancy, delivery and recovery expenses.
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At what age does child support cease?
Pursuant to the CSSA, parents are responsible to support their children to the age of twenty-one years, unless sooner emancipated. A child may become emancipated prior to turning twenty-one if he/she is employed full time and is self-supporting, if the child joins the military, gets married, dies, or leaves the custodial parent’s residence to live elsewhere on a permanent basis. A parent may also be relieved of his/her obligation to support a child if the child unjustifiably refuses parental control and guidance and refuses communication, called “constructive emancipation.” These determinations are made on a case-by-case basis.
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If the parents equally share custody of the child, or they each have custody of one child, do either of them have to pay child support?
Generally, yes. Both parents have a duty to support all of their children according to their respective means. In instances of shared or split custody, each parents’ child support obligation to the other parent is calculated, and then the difference is paid from the higher income parent to the lower income parent. If the difference is small, the Court may allow mutual waivers.
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What can I do to collect past-due child support or spousal support?
There are many methods by which past due support can be collected. The most commonly used method is the income execution, sometimes referred to as a garnishment. This is a mandate that directs the debtor’s employer to withhold a certain sum of money from the payor’s paycheck. The amount withheld is the full current support obligation, plus a certain amount to be paid towards satisfying the support arrears. The total amount withheld can be as much as sixty-five (65%) percent of the debtor’s disposable earnings (gross pay minus taxes required to be withheld by law), if the debtor is not supporting other dependents and is twelve or more weeks in arrears.
Another common method to collect support arrears, a money judgment, can be enforced by seizure of bank accounts, cars and other assets. Getting a money judgment for support arrears requires a petition alleging a violation of support, commonly brought in the Family Court. If the court is satisfied that the failure to pay was willful, the debtor may, in the discretion of the court, face jail time — called “commitment” — for as long as six months. He/she can “purge” this commitment by paying the full support amount due at any time. [back to top]
If the non-custodial parent earns more (or less) now, will his/her child support obligation increase (or decrease)?
Perhaps. There are two basic approaches to upward modification of child support. The first method is only available to custodial parents who receive services of the NY Support Collection Unit (SCU). If the custodial parent receives child support through SCU, the non-custodial parent may be required to pay a cost of living adjustment (COLA), equal to approximately 10% of the existing obligation, added to it. Either parent may file objections to the COLA adjustment, which causes a Family Court hearing to be held to determine a new child support obligation employing the percentage of income method of the CSSA, if the court believes this adjustment to be “appropriate.”
The other method by which child support is modified – upward or downward — is by petitioning the court based on a change of circumstances. If the custodial parent is petitioning for upward modification, he/she will have to show, in addition to a substantial increase in the non-custodial parent’s income, that the existing support is not adequate to meet the child’s needs, and how those needs have increased. If the obligation was the result of a stipulation or a separation agreement, the custodial parent will also have to show that the change of circumstances was unreasonable or unanticipated. [back to top]
I have a child support order against me, but now my child has moved in with me. Can I stop paying child support?
Yes, but only once the court has terminated your obligation by subsequent order. As a practical matter, you could stop paying support (assuming it is not garnished from your pay) upon the filing of the petition, since the termination will be retroactive to the date of filing. This approach has risks, since the child could end up returning to the other parent’s residence before the court makes its determination. You should not stop paying court-ordered child support without also seeking Court intervention.
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What can I do if I disagree with the decision of the Support Magistrate?
You have thirty days to file objections to the order, which means that a Family Court judge will review the decision. If the judge denies your objections, you can appeal this denial to the Appellate Division of the Supreme Court.
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