Are you looking for a new york child support lawyer? Do you even need one? Perhaps you and your spouse both had attorneys for your divorce, but you are now in family court on a request to modify the child support order. Do you need a lawyer for that?
New York child support guidelines
For many years New York State Courts 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. Guideline orders are based upon Adjusted Gross Income (“AGI”), a legal term which starts with gross pay or income and includes deductions for social security, Medicare taxes, and New York City income taxes, but not for Federal or State Income Tax.
The same guidelines are used in both a divorce and in a family court child support case involving unmarried parents.
Guidelines are not used where the income of the parent who does not have custody is very low (below the Federal poverty level or the so-called “self-support reserve”). There is also something called a “Cassano Cap” which means that where the combined adjusted gross income is above around $148,000.00 the guidelines may or may not be applied to amounts of combined adjusted gross income which are over the “cap”, after a trial.
New York Courts may also occasionally deviate from the guideline amounts in certain other situations either on consent of both parties or after something called a “deviation hearing”. An example of a situation where the court might consider deviating from the guidelines is where the parent without custody has very high recurring medical bills or other needs very expensive but life-saving medication which is not covered by medical insurance.
Most litigants are unaware of the fact that under New York Law the amount of child support, at least in Non-Cassano cases, is almost always determined solely based upon by income of the parent who does not have custody, and ordinary living expenses of this non-custodial parent are usually not considered. Also when a New York court is asked to fix an amount of support the fact that the non-custodial parent is supporting other children in his family is seldom taken into account.
However, the non-custodial parent can sometimes get credit for payments he makes for another child not living in his household if there is either already a court order or a written agreement requiring him to make payments against the prior order and payments on the prior order are actually being made.
Despite the guidelines formula, New York 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 family law including the special law and procedures of child support cases.
Complex child support cases in New York City
Cases where the parent who does not have custody has his or her own business or has other children to support are more complex and both parties should have experienced attorneys who are familiar with all aspects of family law to assure that 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 cases (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. In order to avoid unfair or even disastrous results, it is important for you to have a family law attorney who is familiar with these type of cases represent you.
New York City high net worth/ high income support cases
“High income” or “high net worth” cases are invariably much more complex, difficult, and hence more expensive than cases where the combined adjusted gross income is below the Cassano cap. There are several reasons for this. While the same law applies to new york city and the rest of new york state, high income cases are more common in New York City.
Under New York Law the court has wide discretion about deciding whether or not the guidelines should be applied to income which is above the Cassano cap. If the court decides to include income above the cap, it also 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. These are the cases where you see attorneys wheeling in large boxes of papers and documents.
New York modification cases and support agreements
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 prior 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 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.
New York private school and college expenses of children
According to New York case law, a non-custodial parent (usually the father) is not automatically responsible 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 an agreement or stipulation as to college education.
When the parents are more middle income it is not unusual for the attorneys to put in 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 support obligation under New York Law will continue until the child is 22 years old, as long as the child is enrolled on a full-time basis.
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 the attorney should research this issue in advance of any trial or settlement to see what the current state of the law is.
Interstate new york child support lawyer
Interstate cases are cases which involves parents who reside in different states. These cases sometimes raise the most difficult, complex, and novel legal issues of all child support cases. For example, sometimes paternity and child support is resolved with an order in one state, and then the either of the parents moves to another state, and one of the parents files a petition to modify the order. There may be complex issues about which state has jurisdiction, and child support may go to 21, or even 23 under the law of one state, while child support ends at 18 under the law of the other state.
If you’ve lost your NY child support case
In NYS Family Court, child support cases are decided by Support Magistrates. If you are unhappy with the result you have a limited time to file “objections”. The objections are sent to a Family Court Judge who makes a decision which is embodied in a written order. The judge may send the case back to the magistrate with instructions for a “do-over” or may deny the objections. If the Judge denies the objections you have a limited time to appeal to the Appellate Division. Appeals generally take a long time and are costly.
Child support resources for new york family lawyers and non lawyers
If you can’t afford a child support lawyer, you can try Free info for new yorkers who cannot afford new york family law attorneys
Another good resource for free attorneys : new york city office of legal aid society has a civil division and can make referrals to pro bono attorneys and organizations
Online Child support calculator new york child support calculator
If you are a new york cutodial parent you can get information about services available to you, most free of charge at new york custodial parent services