A New York child support COLA petition, or cost of living petition, is a petition which is usually filed automatically by the local child support agency, when the cost of living, as measured by the Consumer Price Index, has gone up more than 10% since the date of the last child support order.
This article is intended to provide general information only, and cannot constitute legal advice on your particular situation. For actual legal advice or assistance with your case or situation, you must consult with a family law attorney who is very familiar with the intricacies of New York child support laws.
The applicable Consumer Price index used (there are several) takes into consideration the costs of housing, food, transportation, utilities, clothes, education, healthcare, child care, and other typical expenses of urban workers.
New York State is one of the few states that requires the local social services agency to file COLA petitions every two years if the cost of living, as measured by the Consumer Price Index, has gone up that much.
It should be pointed out that although the law sometimes allows custodial parents to get a larger amount of child support because of increases in their living expenses, non-custodial parents, in almost all instances, cannot get a reduction in their child support payments because their expenses have gone up. The COLA cost-of-living adjustment will also apply when the income of the non-custodial parent has not gone up at all, despite inflation.
It appears to me manifestly unjust that a non-custodial parent can have increased expenses for housing, food, transportation, clothing, utilities, etc, but even if his income has not gone up at all, he can be subject to an increase in his child support payments due to a cost of living adjustment petition.
This can happen here in New York even when the non-custodial parent is making only a minimum wage, which makes him closer to being poor than middle class.
Who Can Request a COLA Adjustment?,
COLA’s can be requested by either the custodial parent, the non-custodial, parent, or the Support Agency (In New York City, the Support Collection Unit or “SCU”). However, a COLA cannot be granted unless child support is being paid through SCU, and SCU must have a valid address for the non-custodial parent or payor.
Because a COLA case can only be filed if the child support payments are ordered to go through SCU, some savvy lawyers will fight hard during the divorce to have the payments made directly to the custodial parent, and not through SCU.
Objections to COLA’s
If no one objects, the cost of living adjustment takes effect automatically, without anyone having to go to court. If a written objection is made and filed, the Court that issued the last order is supposed to schedule a hearing within 45 days. Objections to the cost of living adjustment cases can be made by the payor, payee, or the support collection unit.
Objections to cost of living adjustment petitions must be made within a short period of time, and must be made to the court that made the last support order. Copies of the objections must be sent to the other party.
It is a good idea to have the objection prepared and filed by an experienced child support lawyer.
De Novo Hearings And The Cost Of Living Adjustment Petition As A “Poison Pill”
You may wonder why the Support Collection Unit would object to the COLA petition that they themselves filed, and it may seem even more bizarre that the custodial parent would object. In fact, very few objections are made by anyone other than the non-custodial parent. However, I once had a case where I represented a non-custodial parent and we requested a COLA and then filed an objection against our own COLA.
In order to understand all of this, it is necessary to go back to something that SCU did some years ago. The New York City Social Services Agency ,which files petitions on behalf of women who have children on welfare, filed a large number of upward modification cases against non-custodial parents, because they believed that it was likely that these men had gotten raises over the years.
However, in order to file an upward modification, you are technically required to put some actual facts in your petition, and the Social Service Agency was not in possession of any facts to support their claim that these men’s incomes had gone up.
Although many courts were allowing Social Service Agencies to proceed with cases anyway, some support magistrates started dismissing petitions where there were no factual allegations. The various Departments Of Social Services, forever creative in trying to get money, filed COLAS instead of upward modifications, and then objected to the COLAS that they themselves filed.
The reason they did this was that, under the New York child support COLA statute, if any party objects to the COLA, the court is required to do a “de novo” hearing. Because it is a de novo hearing, the petitioner is not required to show a change in circumstances to get an increase in the child support order, and sometimes a respondent or payor can get a decrease in his child support payments if his income has gone down without having to deal with the complicated law about change of circumstances.
Because the concept of someone objecting to a petition that he himself filed is so strange, and is not found anywhere else in New York Law, this issue went up on appeal, and the Appellate Division, unsurprisingly, found that SCU could not object to its own COLA. However New York’s highest court, the Court of Appeals, reversed the Appelate Division and found that they could.
When Would A Payor Request A Cola?
The rules for when it is possible to reduce a child support order are fairly complicated, since the law changed in 2010 with a new statute with different rules. For situations where the last order was before October 2010, there are also different rules depending on whether the last order was on consent , by stipulation, or after a contested trial.
Because of the complexity of the law dealing with child support modifications, there are some situations where the non-custodial parent, who is paying the child support, would be unable to get a downward modification but could get his child support reduced after a de novo hearing.
On the other hand, if the non-custodial parent’s income has gone up since the date of the last order, he might end up paying more money for child support if he objected to a cola than if he just allowed the COLA cost of living adjustment to go through. In order to get an idea if this would likely be the case, you would have to run the numbers using the adjusted gross income of both parents, and apply the correct percentage based upon the number of children.
If you have a de novo child support hearing, and you believe that the new order for child support payments is incorrect, you can challenge the order by filing another set of written judges, this time with a Family Court Judge.
The intricacies of the COLA law are often not well understood even by family law attorneys who do a lot of child support cases, so if you are in this situation, you need to find an experienced child support lawyer who possesses a great depth of knowledge about all the ins and outs of New York child support laws.
