Archive for the Category ◊ Child Support ◊

Child support awards may be changed under certain circumstances in New York.  Child support is determined pursuant to a written agreement or by a Court order, after the Court determines the appropriate amount.  Usually child support orders are issued in association with a divorce.  Although sometimes these child support arrangements are final, child support can be modified in certain circumstances.  In fact, the legislature and the Courts have established standards when reviewing child support orders to determine whether a child support order should be modified.

An upward modification of support is where a party petitions the Court for more support.  A downward modification of support is where a party petitions the Court for a decrease, suspension, or termination of support.

There are different standards the Courts use to decide whether or not to modify a child support order.  The standard depends on how child support was awarded in your case – whether child support was decided by a judge after a trial, whether it was set by a written agreement such as a Separation Agreement or a Stipulation of Settlement, and whether the Agreement merged into the Judgment of Divorce or survived the Judgment.  The following is a general overview of the standards that Courts traditionally utilized:

Where there is a surviving agreement, the person requesting the modification needs to show an unreasonable and unanticipated change in circumstances.  Where there is no surviving agreement but only a judgment or order, the party requesting a modification needs to show a substantial change in circumstances or an inability to be self-supporting.  It should also be noted that parents sometimes set forth their own child support modification standards within an Agreement, which they are permitted to do. 

However, the New York legislature recently enacted an amendment to the modification statute: Domestic Relations Law Section 236(B)(9)(b)(2), which was effective as of October 13th, 2010.  It is uncertain at this time to what extent the new statute alters or changes the above standards.  The new statute provides two new bases for a modification of child support.  The first basis is the passage of three years since the order was entered or last modified.  The other basis is a change of 15% or more in either party’s salary since the order was entered or modified.  It should be noted that these two bases give a Court the option to modify the child support order but it does not require a Court to do so.

Keep in mind that the above is merely an overview.  Child support modification is a complicated and evolving area of law.  In addition, there is a whole body of case law which elaborates upon and discusses the standards outlined above in more detail and applies the law to specific facts.  For more information about changing your current child support arrangement, call Danziger & Mangold LLP and ask to speak to one of our attorneys.

If you want to know how much you will have to pay for child support or how much you will receive in child support, the first step is looking to the New York Child Support Standards Act (CSSA). The CSSA determines how much child support must be paid and to whom it must be paid.

You must first determine whether you are the custodial or non-custodial parent.  Generally, the custodial parent is the parent that has physical custody of the children the majority of the time.  For example, if a father has visitation with the children every other weekend and one night during the week and the mother has custody of the children the remainder of the time, the mother will be considered the custodial parent and the father will be considered the non-custodial parent.  If the parents have equal physical custody of the children, the parent with the larger income is deemed the non-custodial parent and he or she will most likely have to pay child support to the custodial parent.

For more information on custody terminology, please click here:
http://dmnylaw.com/areas-of-practice/family-law/types-of-child-custody/

Once you know whether you are the custodial or non-custodial parent, the CSSA guidelines require you to determine the “adjusted” gross income of both parents.  Adjusted gross income is determined by taking your gross income and subtracting certain deductions.  For purposes of the CSSA, gross income is the total of income that is reported on your most recent federal income tax return, investment income, voluntarily deferred income such as pensions and retirement benefits, imputed income, which includes resources available to you such as fringe benefits and money or goods provided to you by relatives or friends, and any self-employment deductions you take.

Then, you take your gross income and subtract the necessary deductions.  Deductions include certain unreimbursed employee business expenses, maintenance you pay to a spouse that is or is not a party to the action, child support you pay for another child not a party to the action, public assistance, supplemental security income, city taxes, and Federal Insurance Contributions Act (FICA) taxes that you’ve paid.

After obtaining the adjusted gross income of both parents, you are ready to calculate the non-custodial parent’s basic child support obligation.  New York State periodically publishes a Child Support Standards Chart, which can be used to determine an approximate annual child support obligation.  This most recent chart for 2011 can be found here:

https://www.childsupport.ny.gov/dcse/pdfs/cssa_2011.pdf

If you have any questions on how to determine the approximate annual child support obligation in your case, please contact Danziger and Mangold and ask to set up a confidential consultation with one of our attorneys.

It should be noted that the CSSA is mandatory only up to the first $130,000 in combined parental income.  The application of the CSSA for income over this amount is a more complicated subject and is not addressed in this article.  It should also be noted that a parent’s total child support is not limited to his or her “Basic Child Support Obligation”.  In addition to the “Basic Child Support Obligation,” which is commonly paid on a weekly or monthly basis, the non-custodial parent is also obligated to pay his or her share of childcare and medical expenses in proportion to his or her percentage of both of the parent’s total income.  Moreover, educational expenses such as college expenses may be awarded by a court.

Note that in general the courts will stick to the CSSA guidelines.  However, if the parties agree otherwise or the Court feels an application of the CSSA guidelines would be unjust in a certain case, a deviation from the CSSA guidelines is allowed.