child support

CHILD SUPPORT GUIDELINES

For many years, Courts in New York State have used child support guidelines (i.e. 17% of Adjusted Gross Income for 1 child) in most situations in order to fix an amount for child support. Guidelines orders are based upon Adjusted Gross Income (“AGI”) which is a legal term which starts with gross pay or income and includes deductions for social security and medicaid taxes, and New York City income taxes, but not for Federal or State income Tax.

Child support guidelines are not used where the non-custodial parent’s income is very low (below the Federal poverty level or the so-called “self-support reserve”). There is also something called a “Cassano Cap” which meant that Where the combined adjusted gross income is above around $140,000.00 the guidelines may or may not be applied to amounts of AGI over the “cap” (“Cassano Hearing”).

Courts may also occasionally deviate from the guideline amounts for child support orders in certain other situations either on consent of both parties or after a “deviation hearing”. An example of a situation where the court might consider deviating from the guidelines is where the non custodial parent has very high recurring medical bills such as cancer medication or other very expensive but life saving medication which is not covered by medical insurance.

Most litigants are unaware of the fact that child support is almost always determined by income, and ordinary living expenses of the non custodial parent are usually irrelevant, except in certain situations, such as deciding if the non custodial parent has to pay for college, or in certain unusual situations. Also when a court is asked to fix an amount of child support the fact that the non custodial parent is supporting other children is not always taken into account.

Despite the guidelines formula, child support cases can be very complex and are fraught with pitfalls for the pro se litigant (The term “pro se” refers to acting as one’s own attorney or representing yourself in a civil or criminal matter) or even for an attorney who is not familiar with the special law and procedures of child support cases. Cases where the non-custodial party either has his or her own business or has other children to support are more complex and both parties should have experienced legal representation to assure their rights are protected. Other recurrent and often-times problematic issues involve overtime pay, child care expenses, private school and college tuition, upward and downward modification (see discussion below), Cost of Living (“COLA’) cases, so-called “imputed income”, and child support enforcement.

This is an area where the law is both complex and changes frequently. Therefore, except for the few “cut and dried cases” , this is not an area where you should attempt to represent yourself. It is important for you to have a lawyer who is familiar with child support cases to represent you. If you have already lost your child support case, you are allowed to file objections, and can appeal if you lose those, but in both situations you must act right away.

HIGH NET WORTH CASES

“High income” or “high net worth” cases are invariably much more complex, difficult, and hence are expensive than cases where the combined adjusted gross income is below the Cassano cap. There are several reasons for this. The court has wide discretion about deciding whether or not the child support guidelines should be applied to income which is above the Cassano cap, and if the court decides to include income above the cap, it has wide discretion to decide how high to go over the cap. In deciding these issues the statute cites a number of relevant factors, and there is also a “catch all” clause which allows the court to consider practically any other factor which is relevant and fair. The end result is that these cases are unpredictable as to result, hence hard to settle, and also expensive to try.

Secondly, high net worth people tend to have much more complicated financial affairs, including pensions, all kinds of investments, tax shelters, nannies, private schools, and the like. This complexity often results in very extensive discovery of documents, and even depositions, and trials are usually much longer.

Finally, high net worth parties usually hire more expensive lawyers. These are the cases where lawyers come to court wheeling in multiple boxes of documents, all of which have to be read and analyzed in advance.

MODIFICATION CASES

The majority of cases that I get are cases where one or both parties seek to modify a prior support order. For many years courts have applied different standards to modify orders depending on whether the old order was reached by agreement or if it was entered after a contested trial.

In October of 2010 the Legislature passed a statute that significantly changed the legal standards for modifications. Depending on when the prior order was entered, Courts will apply either the “old law” or the “new law”. The “new” statute changes the legal burden for a change in the support order, but it also provides for the parties “opting out” of its new provisions, if the prior order was by agreement between the parties, and there is a valid “opt out” clause in the order.

PRIVATE SCHOOL AND COLLEGE

According to NY case law, a non custodial parent (usually the father) is not automatically liable to pay for the cost of either private school or college. Instead the court is supposed to first determine that there are “exceptional circumstances”, and even then the court has to find that the noncustodial parent can afford to pay for the private school or college.

Exceptional circumstances are most often found when one or both of the parents themselves went to private school or college. In high net worth cases which are settled without a trial, there will typically be a stipulation as to college education. When the parents are more middle income it is not unusual to have a provision in the stipulation that the non custodial parent is required to pay based upon the cost of college in a state run college or university. Typically when a non custodial parent is paying for college the basic child support obligation continues until the child is 22 years old, as long as he or she is enrolled on a full time basis.

Recently a law was passed making New York public colleges and four year universities free to most people. It is too soon to see how this new law will effect cases involving College.

When the child or children go away for college it is possible that the non custodial parent can get a credit against the basic child support obligation for the non custodial parent’s contributions for room and board at the college. This is called “double dipping” and should be researched in advance of any trial or settlement to see what the current state of the law is.

EMANCIPATION

In New York, child support continues until the child reaches the age of 21 (not 18 as in some other states), or until the child is “emancipated”. Emancipation occurs when the child gets married, goes into the military, or moves out on their own and are fully self supporting.

Family law can be complicated when dealing with child support issues. I have extensive experience with the special laws and procedures of child support cases and will work for you to try to obtain a successful outcome.

Call me today at (347) 461-0760

Paul W. Matthews Esq 305 Broadway, Suite 801, NYC 10007 tel (347) 461-0760