Children have a right to be supported by their parents until they become emancipated. Non-monied spouses may also have a right to financial support too. But, parents and spouses also have a right to be able to pay their own expenses.
We understand that this can be scary and confusing and that financial uncertainty is often one of a person’s biggest fears. We can help you navigate this process to protect your rights. Having represented parties in both aspects of support, we can advise you as to what to anticipate, how to plan, and as to a fair resolution.
How Does Child Support Work in New York?
In New York State, generally, parents must support a child until the child reaches age 21.
There are exceptions, for example, when a child under 21 is married, or in the military. When parents live apart, one parent will almost certainly be required to pay child support.
The parent having “residential” custody of the child will receive support from the other parent. (Residential custody is different than “legal” custody). This can be accomplished by agreement or Court intervention. We help parents prosecute such claims and defend against them to help ensure that the amounts are appropriate.
To determine child support, the Court first determines which parent is the “custodial” parent.
If that has not been determined, or the parties and child(ren) are still living together, custody will need to be addressed before child support. Assuming custody has been resolved, the Court will consider any agreement signed by the parties resolving custody and /or child support. Otherwise, the Court will follow the New York State Child Support Standards Act (“CSSA”).
Before the Court proceeds, the parties will be required to exchange financial information.
We help our clients gather the proper information to make sure that the Court has a complete picture. With effective counsel, parties can often resolve their issues at this stage. If they cannot, the Court will engage in fact finding to determine each party’s income which includes income from many sources, not simply from employment. After the Court determines each party’s income, the Court must then make certain deductions.
The Court then adds the parties’ incomes to compute the combined parental income.
If that income is at or below the statutory cap ($154,000.00 as of March 1, 2020 - forms and Calculators for both Contested and Uncontested Divorces revised March 1, 2020 reflecting these changes are posted here), the court will apply the appropriate percentage based upon the number of children of the relationship (17% for one child, 25% for two children, 29% for three children, etc.) to the payor’s income to determine the amount of child support.
If the parties’ combined incomes exceed the statutory “cap”, the Court must consider certain factors before awarding child support in excess of the cap - Courts in our geographic practice area often award child support in excess of the cap.
In addition to basic child support, parents may be ordered to provide or contribute toward the other expenses of the child(ren), often referred to as “add ons”, which may include the cost of health insurance, and unreimbursed medical expenses, child care, and likely the cost of a college education as well.
Modification of Child Support
Has your income dropped?
Have the needs of your child increased substantially?
Have more than three (3) years passed since the date of your last child support order?
You may be entitled to a modification - either parent can file an application for modification of child support. The basis for such an application will depend on, among other things, the date of the last order of support, and whether or not the parties agreed to the support in writing or it was determined by the Court.
That aside, for more recent orders, unless the parties agreed otherwise, a court may modify an order of child support where:
(A) there has been a substantial change circumstances since the date of the last order; or
(B) three years have passed since the order was entered, last modified or adjusted; or
(C) there has been a change in either party's gross income by fifteen percent or more since the order was entered, last modified, or adjusted.
While there is no definitive list of factual scenarios that may constitute a substantial change in circumstances, some examples of include: a material change in one or both parent’s incomes as a result of an illness or injury, or substantially increased expenses resulting from the special needs or illness of a child.
Enforcement of Child Support
If a parent defaults in the payment of child support, the recipient and child have rights.
First, if there is a stipulation or written agreement, the default and notice provisions, if any, must be reviewed and followed. The recipient may then commence enforcement proceedings, which may include seeking court intervention. How to proceed will depend on many factors, including the existence of an agreement, the location of the parties, their sources of income, and their assets. We help parents enforce their rights, and we help parents defend themselves.
In an enforcement proceeding, the Court has broad authority and can issue a money judgment which will accrue interest, hold a defaulting parent in contempt (potentially including jail time), suspend a driver’s license or professional license, and award the enforcing party counsel fees.
A defaulting party need to defend himself/herself against enforcement proceedings, the available defenses are limited and will be fact specific. But if a payor parent becomes unable to pay, and allows arrears to accrue, they cannot be relieved of that liability and should seek legal advice as early as possible to be able to defend himself/herself.
If you have questions or would like a more detailed explanation, please call our office to schedule a telephone or in person consultation.
Spousal Support in New York
Under New York law, a spouse may be required to pay support/maintenance to the other (formerly referred to as alimony).
We understand that this can be overwhelming to a spouse that has never worked before and to a spouse that may fear having to pay a large part of their income to the spouse - financial uncertainty can be overwhelming. We can help you through this process to best protect your rights. Having represented parties on both sides, we will advise you as to what to anticipate, how to best plan your case, and as to a fair resolution.
Like child support, spousal support is generally computed based upon a statutory guideline. Effective March 1, 2020, the income cap of the maintenance payor under the Maintenance Guidelines Act increased from $184,000 to $192,000. Forms and Calculators for both Contested and Uncontested Divorces revised March 1, 2020 reflecting these changes are posted here.
However, as with child support, courts may and routinely do vary from the statutory formula and must consider the following statutory factors when determining the appropriate amounts and duration of maintenance payable by either party:
the income and property of the respective parties including marital property distributed pursuant to subdivision five of this part;
the length of the marriage;
the age and health of both parties;
the present and future earning capacity of both parties;
the need of one party to incur education or training expenses;
the existence and duration of a pre-marital joint household or a pre-divorce separate household;
acts by one party against another that have inhibited or continue to inhibit a party's earning capacity or ability to obtain meaningful employment. Such acts include but are not limited to acts of domestic violence as provided in section four hundred fifty-nine-a of the social services law;
the ability of the party seeking maintenance to become self-supporting and, if applicable, the period of time and training necessary therefor;
reduced or lost lifetime earning capacity of the party seeking maintenance as a result of having foregone or delayed education, training, employment, or career opportunities during the marriage;
the presence of children of the marriage in the respective homes of the parties;
the care of the children or stepchildren, disabled adult children or stepchildren, elderly parents or in-laws that has inhibited or continues to inhibit a party's earning capacity;
the inability of one party to obtain meaningful employment due to age or absence from the workforce;
the need to pay for exceptional additional expenses for the child/children, including but not limited to, schooling, day care and medical treatment;
the tax consequences to each party;
the equitable distribution of marital property;
contributions and services of the party seeking maintenance as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party;
the wasteful dissipation of marital property by either spouse;
the transfer or encumbrance made in contemplation of a matrimonial action without fair consideration;
the loss of health insurance benefits upon dissolution of the marriage, and the availability and cost of medical insurance for the parties; and
any other factor which the court shall expressly find to be just and proper.
We understand that this can be overwhelming to a spouse that has never worked before and to a spouse that may fear having to pay a large part of their income to the spouse - financial uncertainty can be overwhelming. We can help you through this process to best protect your rights.
Modification of spousal support is subject to a different and much more difficult standard than modification of child support. Absent a specific provision in a written agreement, the standard for a payor spouse to seek relief from spousal support is extreme hardship. As is demonstrated by the very term, it is difficult to establish.
Enforcement of spousal support is undertaken in much the same manner as enforcement of child support – if the payor spouse defaults, the recipient spouse has various options. First, if there is a stipulation or written agreement, the default and notice provisions, if any, set forth therein, must be reviewed and followed. Otherwise, the recipient must proceed with enforcement proceedings, which may include seeking court intervention. How to proceed will depend on many factors, including the location of the parties, their sources of income, and their assets. In an enforcement proceeding, the Court has broad authority and among other things, can issue a money judgment which will accrue interest, hold a defaulting party in contempt (potentially including jail time), and award the enforcing party counsel fees.
If you are the defaulting party and need to defend yourself against enforcement proceedings, the available defenses are limited and will be fact specific. If a payor becomes unable to pay, he/she should seek legal advice as early as possible.
If you have questions or would like a more detailed explanation, please call our office to schedule a telephone or in person consultation.
We understand that this can be overwhelming to a spouse that has never worked before and to a spouse that may fear having to pay a large part of their income to the spouse - financial uncertainty can be overwhelming. We can help you through this process to best protect your rights. Having represented parties on both sides, we will advise you as to what to anticipate, how to best plan your case, and as to a fair resolution.