CHILD SUPPORT

How are child support awards determined?

Child support awards are governed by legislated standards. To arrive at the appropriate award, the gross incomes of the parents are added and multiplied by the applicable percentage, which varies in accordance with the number of children of the marriage. The resulting amount is then divided proportionately between the parents according to their respective incomes.

In awarding "basic" child support, which is the initial part of a child support award, the court must apply the above formula to the first $154,000 of parental income. In determining the child support obligation for the remainder of income, the court is required to look at various statutory factors, or it may apply the above formula to combined family income over $154,000.

While the foregoing summarizes how child support awards are calculated, the special circumstances of each case may allow or require the court to vary from the mandated percentages. These circumstances include the special needs of a child, joint custody arrangements and the financial resources of the parents. The best way for a divorcing couple to avoid having a child support problem is to negotiate a comprehensive child support agreement. For example, while the court does not have the authority to continue child support beyond age 21, the parties may agree that the support obligation (or portion thereof) will continue until the child graduates from college. The agreement may also include a provision for life insurance coverage to compensate for the loss of child support.

You should be aware that “basic” child support is not intended to cover the non-custodial parent's share of the costs of uninsured health care, child care and educational expenses which may each constitute additional components of the child support award. Child support terminates upon the death of the payor.

Revised Domestic Relations Law § 236(B)(9)(b)(2) and Family Court Act § 451 permit the modification of child support upon establishing that either (i) a substantial change of circumstances has occurred, or (ii) there has been a 15% change in the payor's or payee's income, as long as such change has been involuntary and diligent attempts to secure employment commensurate with the payor's education, ability, and experience are demonstrated. In addition, either party may request modification after three years have passed from the initial award. The parties may “opt out” of these modification rights in a duly executed agreement.

What can I do if my spouse refuses to pay child support?

There are various remedies available to secure child support payments, such as directing a party to provide reasonable security after a default in payment, requiring the defaulting party to pay the legal expenses of the custodial parent, and obtaining a money judgment for the amount of arrears of support. In addition, the law provides that a person's driver's license and state-issued professional and business licenses may be suspended when a person is four months or more in arrears in the payment of child support or combined child and spousal support. However, if the court determines that the suspension of the license of the defaulting parent would create an extreme hardship, the court may, instead of suspension, suspend the order to the licensing entity for a period not to exceed one year. If on or before the expiration of this period the court has not received competent proof that the defaulting parent is in full compliance with his or her support obligation, the court will cause the suspension of the order to be removed and reinstated.

If the defaulting parent lives in a different state than you and your children and is delinquent in child support payments for a period of longer than one year or the arrears are in excess of $5,000, such parent can be charged under the Child Support Recovery Act and the Deadbeat Parents Punishment Act. Under the Deadbeat Parents Punishment Act, a parent is not absolved from paying child support because financially such parent can only pay a fraction of what is owed in child support payments. The delinquent parent must make an effort to at least pay part of the child support judgment that is owed.

As in other areas of matrimonial law, the availability and content of enforcement mechanisms changes from time to time. It is wise to consult an attorney to review your options.

However, it may be a difficult, time-consuming and expensive process to secure child support payments. A court order must first be obtained and there are often long delays between obtaining the order and obtaining payment.

My child's other parent has no job, property or assets. Is there any way I can still collect support from them?

You may request child support enforcement services from the Westchester County Child Support Enforcement Unit. To do so, you will need to gather as much information as you can about your spouse and provide such information to the Enforcement Unit. Important information includes your spouse's date of birth, social security number and present and past addresses and telephone numbers. Other information includes past employer names, addresses, and telephone numbers (if your spouse is currently unemployed) and your spouse's driver's license number. You should also try to obtain information concerning any other professional, business or occupational licenses your spouse may have.

If you are a victim of domestic violence, you can petition for temporary child support at the same time that you petition for an order of protection. For information concerning domestic violence, see below.

I received a judgment for child support against my spouse. However he or she has just filed a petition for bankruptcy. Does his or her bankruptcy petition affect the judgment against him or her for child support?

No, your spouse's filing for bankruptcy protection does not affect the child support judgment against him or her. There are a number of exceptions to the general grant of discharge provided by filing for bankruptcy. Included in the exceptions are any debt owed to a spouse, former spouse, or child of the debtor, for alimony, maintenance, or support of such spouse or child, in connection with a separation agreement, divorce decree or other similar order from a court of record.