Child Support in New York
Child Support Laws in New York
Child support refers to the payment made by one or both parents in accordance with a court order or pursuant to a legitimate agreement between the parties following a divorce in New York. Domestic Relations Law 240 and Family Court Act 413, collectively known as the Child Support Standards Act (CSSA), require the court to award child support payment equal to the sum of the basic child support obligation calculated using a three-step statutory formula. However, CSSA provisions permit the court to modify the support amount where necessary, such as if the noncustodial parent's share of the basic child support obligation is unfair or inappropriate. In New York, there is a presupposition that the amount of support referred to as the basic child support obligation is the proper amount.
Passed in 1989, the CSSA determines child support payment that is sufficient to maintain a reasonable quality of life for a child, depending on the total income of the divorcing parents. The formula used in the calculation considers the incomes of both divorcing parents, even if they share custody since both parents have a responsibility to maintain their child. Child support obligations apply to children born to married parents and those born to unmarried parents and children up to the age of 21 except in instances where the children were emancipated earlier.
How Does Child Support Work in New York?
Generally, in New York, a custodial parent receives child support from the noncustodial parent. In a divorce, the parent whom the child lives with is the custodial parent. The following specific conditions apply to child support:
- If the two parents who share a child were never married, paternity must first be established by an Acknowledgement of Paternity or Order of Filiation.
- A New York court may award child support to a custodial parent even if that parent can support the child without financial help from the noncustodial parent.
- Even if both parents live together with the child, one parent may get a child support order if the other parent refuses to assist with the child's expenses.
- If a child is placed in foster care, both parents are responsible for child support. Child support may be:
- Ordered in a divorce case in the Supreme Court
- Ordered by filing a support petition in the Family Court
- Arranged by written agreements between the parent parties
If you do not have a child support order, you may file a support petition in Family Court. Alternatively, you may contact your local Child Support Enforcement Unit for assistance in initiating the Family Court case. If you have a child support order and want to modify or enforce it, you may use the DIY Form for Support Modification and Enforcement or Violation. Child support may be paid weekly, bi-weekly, monthly, or bi-monthly. Child support payments may be made directly through the Child Support Collection Unit of the NYDCSE (New York Division of Child Support Enforcement) or directly to the parent.
If parties in a divorce cannot reach an agreement on child support, court intervention will be required. Divorcing parents entering into agreements may end up agreeing on payments that provide far more or less child support than the amounts that may be obtained using the formula outlined in the CSSA. Still, the agreement reached between the divorcing parties must meet the following requirements:
- The agreement must include a declaration stating that both parents are aware of the CSSA's regulations.
- If an attorney does not represent one or both parents, the unrepresented parent must be provided with a copy of the formula amount chart.
- Both the agreement and the child support order obtained from the court must indicate basic child support obligation.
- If the amount agreed upon differs from the basic child support obligation, the agreement and order must indicate the rationale for the difference.
If court intervention is required in determining child support, the court will adopt the statutes stipulated in the CSSA in calculating and mandating child support payments. The CSSA was enacted with the child's best interests in mind, ensuring that the child's needs are addressed and that the noncustodial parent pays a reasonable amount so that the child may maintain the same level of life as experienced prior to the divorce.
In New York, child support covers expenses relating to the child, such as health insurance, educational expenses, medical costs, and childcare, while the custodial parent is at school or work. In calculating child support payments, New York courts use a formula based on the total income of the divorcing parents. The support magistrate or judge in New York courts will determine the incomes of both parents and make deductions as stipulated by law. The incomes are then added together to obtain a combined parental income.
In determining income for each divorcing parent, the court considers all income types, not only incomes reported to the Internal Revenue Service. Common sources of income used in aggregating total income for each parent include:
- Dividends, interests, wages, business investment income, and capital gains
- Cash benefits such as workers' compensation, disability (government and private), social security and veteran's benefits, unemployment insurance.
- Fellowships and stipends
- Voluntarily deferred income or compensation
- Annuity payments
- Pension and retirement benefits
- Alimony payments
Other income sources or potential income that the court may include in the calculation are:
- Money, goods, or services provided by friends or family
- Fringe benefits or employee remuneration, such as meals, accommodation, memberships, or automobiles) that results in a personal economic gain for the parent and self-employment or business deductions that lower personal expenses.
Finally, the court is not bound by a divorcing parent's reported income but may determine income depending on a parent's previous income or resources or on a parent's potential to earn.
Deductions that may be made from income before applying the formula include:
- Yonkers or New York City income or earning taxes
- Federal Insurance Contributions Act (Medicare and Social Security) taxes
- Alimony paid or agreed to be paid to the other parent
- Child support payments made on behalf of another child and alimony, or maintenance paid to a former spouse provided the payments are made according to a formal agreement or court ruling.
- Maintenance or alimony paid to the other parent or agreed to be paid.
- Unreimbursed employee business costs except where such expenses resulted in a reduction in personal expenditures
After making the necessary deductions from each parent's income, the judge or support magistrate selects a percentage depending on how many children in the household are required to be supported. This percentage is multiplied by the total parental income, and the result is shared between the parents in proportion to their earnings. When the total parental income exceeds the threshold established and publicized by New York State (often referred to as "the cap"), the court or support magistrate may choose to apply other factors instead. The current cap in New York State is $154,000 per year. The cap is subject to change every two years and is usually updated on the Child Support page of the New York website. Child support percentages in New York are:
- 17% for 1 child
- 25% for 2 children
- 29% for 3 children
- 31% for 4 children
- 35% for 5 or more children
Factors that may be considered by New York courts when the total parental income exceeds the established cap are:
- Financial assets of the parents of the child
- The child's standard of living before the divorce
- The mental health and the physical health of the child
- Tax implications for each divorcing parent
- Educational needs of the divorcing parents and the child
- Other children of either party that may exist outside the marriage
- Other non-financial contributions that the divorcing parents may make towards the well-being and general care of the child
- Whether one parent's gross income is significantly lower than the other parent's gross income.
Note that the CSSA formula used in calculating child support payments reduces the amount required to be paid by a noncustodial parent with a low income. A child support order may also be modified if there has been a significant change in circumstances since entering the prior order. A significant change in circumstance may be at least a 15% increase or decrease in either divorcing parent's income.
What is the Average Child Support Payment in New York?
Average child support payments in New York vary as payments are decided on a case by case basis. However, you may calculate an approximate annual child support payment in New York using the Child Support Standards Chart, published by the Division of Child Support Services of the New York State Office of Temporary and Disability Assistance (OTDA).
How to Avoid Child Support in New York
You can waive basic child support payments if both divorcing parties agree to avoid the obligation and state in writing the terms of such an agreement, what the basic child support obligation should be, and why the parents' agreement should be adopted by the court. The agreement should also indicate that both divorcing parties have been advised of the provisions of the Child Support Standards Act.
The requirements stated above are intended to ensure that divorcing parents are informed of their legal rights and duties before waiving them. Neither parent has the authority to waive any of the requirements. In other words, both parents must agree to deviate from the child support statutes, and even if both parents agree, the arrangement is not legal until the court authorizes it.
How to Get Child Support Arrears Dismissed in New York
Child support arrears in New York may be owed to the custodial parent or the state. For child support arrears owed to the custodial parents, the courts may waive payments if the parents reach an amicable solution waiving payments. You may follow these steps to dismiss child support payments in New York:
- Try to reach an agreement with the other parent: The parent owing the arrears may offer to pay a part of the arrears in exchange for the parent receiving the support to dismiss the balance due. However, note that even if both parents agree on the dismissal of arrears, only a court can authorize the waiver.
- Record the agreement in writing: If both parents agree to dismiss child support arrears, it must be put in a written statement and filed with the court for consideration.
- Wait for the court's decision: The court conducts a balancing test to determine if dismissing the arrears is in the best interests of the child. Often, the court may approve the agreement if the parents agree and the cause for the paying parent's inability to meet the obligation is acceptable and outside the parent's control. However, if the court believes the agreement is fundamentally unfair, not in the child's best interests, or was signed under duress, it will not approve the agreement.
If you owe arrears on child support payments to the state through the New York Department of Social Services, the only reprieve you may get is in the form of a reduction in the arrears. For noncustodial parents eligible to participate in the state's child support arrears credit program, arrears may be reduced by about $5,000 a year for three years. There are no income limitations established before a noncustodial parent may qualify for this reduction, but the parent must make full payments on the existing child support for the whole year. You may visit your local Office of Child Support Enforcement (OCSE) to determine if you qualify for the program.
Note also that pursuant to Section 413 (1)(g) of the Family Court Act, New York law permits a noncustodial parent to obtain a cap on arrears ($500) if the parent's income is below the federal poverty line at the time the arrears accrued. To obtain this cap, the noncustodial parent must apply to the court and show proof of income limitation due to disability or inability to earn income. Proof of obtaining public assistance may also strengthen the noncustodial parent's case for capping arrears in court.
How to Choose a Child Support Lawyer in New York
If you are going through a divorce, it may be difficult not to worry whether there will be enough money to provide for your child's needs. On the other hand, the noncustodial parent is concerned about being financially self-supporting after the child support obligation is paid. In order to obtain the desired outcome in court, it is recommended that you opt for an experienced child support attorney to fight your case. You may follow these steps in making your choice:
- Learn more about child support: If it is your first time seeking child support, it is critical to understand the procedure and the implications of the judgment for all parties. Take time to visit multiple websites, especially online sites with New York State-specific information, to ensure you have a holistic view of child support. This may assist you in making an informed choice and asking important questions when consulting with a child support lawyer.
- Create an attorney list: As with any other legal action, contracting with an attorney primarily because the lawyer is available is a bad idea. While some of the attorneys you review may seem to be a good fit on paper, they may have a different feel when you meet with them. As a result, compiling a list of lawyers you may be interested in may assist in narrowing the candidate pool and providing you with a better idea of the attorneys you should meet with.
- Prepare specific questions: Prior to scheduling an interview with a prospective child support attorney, ensure that you have compiled a list of specific questions regarding the process and what to expect in court. It is important to write down this information since you will need to recall it when the time comes for the interview. Additionally, you may like to inquire about the duration of the case and the cost of the services.
- Meet the prospects: Meet with the top prospects on your list in person to assess whether they are a good match for you. Even if you immediately feel persuaded by the first attorney you meet, take the time to research other options before making a choice.
- Stay involved in the entire process: Do not make the mistake of believing the job is done once you hire a child support attorney. You should endeavor to be available and receptive to any inquiries or suggestions offered by your attorney. Your inputs and participation are critical in ensuring that your attorney's fight for your cause yields the intended results.
What Happens if You Don't Pay Child Support in New York?
When a child support determination is made in court, a child support order is issued which specifies child support payments to be made to the custodial parent or guardian. If the paying parent misses payments, the custodial parent or the Support Collection Unit of the New York OCSE may file a support violation petition in the Family Court. In some cases, the Department of Social Services may also file a petition if the child receives public assistance, food stamps, or Medicaid. Note that instead of a judicial proceeding, the Support Collection Unit of the New York Office of Child Support Enforcement may also institute an administrative proceeding that does not require a court hearing.
In an administrative or an automated child support enforcement process, the paying parent who has failed to pay child support obligation may be punished with:
- Additional financial penalty
- Tax refund offset
- Lottery prize intercept
- Property execution
- Driver's license suspension
- Credit bureau reporting
- Referral to the state Division of Taxation and Finance for the seizure of assets
- Denial of new and renewed passports
- Denial of new and renewed business and professional licenses
In a child support violation petition, both parents have the right to an attorney, but only the parent supposed to pay child support may be assigned an attorney if one cannot be afforded. During the proceedings, the court will determine if the violation is willful or non-willful. A willful violation occurs if the paying parent fails to pay child support when the parent had or should have had the ability to pay. A non-willful violation occurs when the paying parent does not pay child support due to not having the ability to pay. The violation may be met with the following penalties:
- Additional financial punishment
- Lien placed on a property.
- A cash deposit of up to three years' worth towards future child support
- Referral to the OCSE's Support Through Employment Program (STEP)
- Arrest or incarceration for up to 6 months
Also, noncustodial parents owing child support in excess of four months may have their state-issued licenses suspended, including business licenses. Willful nonpayment of past-due child support is a criminal offense under federal law. When significant arrearages have accumulated, other child support enforcement mechanisms have failed, and the noncustodial parent is demonstrated to have willfully violated the support order, the OCSE may request criminal prosecution by the United States Attorney's Office or the District Attorney's Office.
When Does Child Support End in New York
Typically, child support in New York State is mandatory until the child attains the age of 21 except where the parties have agreed through a written stipulation that payments will continue beyond the age of 21. Pursuant to Section 240 (1-b)(b)(2) of the New York Domestic Relations Law, parents have no child support obligations to an adult child.
However, child support may be stopped before the child is aged 21 if the child is married, self-supporting, or in the military. In any of the instances listed above, a child is considered emancipated, and the parents' support obligation ends. New York State also considers a child to be emancipated if the child is between the age of 17 and 21, leaves the parents' home and refuses to obey the parents' reasonable commands.
How to Stop Child Support in New York
If you have a legitimate cause for stopping child support payments and want to commence the process to stop the payment of child support, you may do so by contacting your local Family Court (or the one that issued your current child support order). Speak with the county clerk and obtain the necessary forms to terminate child support payments. Complete the papers and submit them to the courthouse.