New York Child Support Legal Questions

The law says that your children are entitled to be supported by you in a sum based on ALL of your wages, and that can't be changed (modified downward) unless you prove to the court a significant change in your circumstances since the support order was entered, and you have a very good reason why those circumstances aren't improving.   ... Read More

You left out the most important piece of information necessary to determine whether your payments are too high- your salary. Child support is determined by a statutory formula set by law that accounts for both parents' income, or by agreement of the parents. If your support payments were set pursuant to a consent order, you need to show a substantial change of circumstances and diligent efforts to improve them in order to lower your payments. ... Read More

Absolutely. Whether or not the father of your child is your husband, if he is not supporting your baby, you can absolutely take him to court for child support. Since he works "off the books" it may be difficult to prove what he earns, but he still has to come up with evidence of his salary with current salary or earnings records and tax returns once you're in family court.  ... Read More

I assume you have a written child custody/support agreement (either separate or part of your divorce agreement). You can file a counter-claim or counter-petition not only to recoup the overpayment of child support during the years your son lived with you, but you might even be able to get child support arrears from HER if you can prove your child lived with you and that you supported him during those years. If your ex was unwilling to care for your son, you can also file a petition for violation of the custody agreement  for the years your son was supposed to be living with her, as long as you did nothing to alienate your son from his mother, or discourage him from seeing her, or withhold him from her.  ... Read More

YES. A spouse has a legal obligation to support their indigent spouse, and a parent has a duty to support their child until age 21. These duties are unconnected with separation or divorce. You can take your husband to court for maintenance and support without a separation- and even get a divorce decree while still living together, which sometimes happens when a couple doesn't have enough money for two households. But keep in mind that since your husband is presumably paying the rent and utilities, the judge could take that into account in any award of maintenance. ... Read More

Hi The deductions your child's father is making are improper.   There is a difference between direct support -- which you use for your child's overhead -- and voluntary payments, like a telephone or clothing.   He cannot deduct any sums from direct child support.  That is impermissible. You need to go to Family Court in your county and file a violation petition.  You will seek arrears for everything that he has deducted from your direct support.   In fact, i think at this point that it is best that you have Support Collection Unit collect the child support from him since he appears to think that he can deduct anything he wants. I wish you luck.   Do this quickly! Ilysa Magnus    ... Read More

A petitioner can only get child support arrears dating from the request made to a Court. If she never filed a court action, she never started the clock on arrears. Once she does file, the date of that petition marks the arrears. You'll want to show that you have been paying and try to argue that the amount is what you can afford. Good luck.... Read More

Child support does NOT have to be paid through the Support Collection Unit. It can be paid directly from non-custodial to custodial parent. That said, if you opt not to use the SCU, you should make sure to keep a record of all payments (so pay by check or money order and keep copies for yourself) in case any future claim of non-payment is made.    Good luck!... Read More

Congratulations. Now that you won your appeal you go right back to square one: back to the trial judge for another shot to price you cannot pay. Unfortunately you probably aren't happy going back there, but that's how this process works. You should file to downwardly modify if you haven't already. Good luck. ... Read More

Hi First, if you reside in NYS, the emancipation age is 21.  He cannot stop paying at 18. Second, you can accept the check, write "under protest" on it and cash it.  You can let him know that you are accepting the check, but that he must continue to pay you either from his disability payments or otherwise. Third, if he is considered disabled, and he is collecting disability through Social Security, you can apply under his Social Security number to receive support payments for your kids.  That would end when they turn 18 though.   I'm assuming you have an order requiring your ex to pay child support.   I would accept the monies but with the condition that this is nowhere near what he will be required to pay for the kids until they are each 21. No, child support is not a taxable event.  You do not pay tax on child support. I hope this helps.  ... Read More

Hi First the burden is on your ex to prove that support collection seized too much money from him.  That's not your problem.   Second there's a real question about whether he can recoup any monies paid toward child support, particularly since he's been a deadbeat.   Question:  was there interest added to the judgment?  If so, that may explain the additional sums he's claiming he didn't owe. I would appear in Court and tell the judge that you've been running after this guy for 10 years, that support collection has been collecting, that the sums were insufficient to cover his obligation and that you've been having to make due on a lot less than he was supposed to pay.  What happens going forward also?   Is he going to pay?  Does he owe you money already?  My position would be that, with a guy who has been irresponsible, you need to make sure that there are sufficient monies coming in to provide for your child in the future.   I would hope that a judge would look at his history and reject his position. It also depends on the amount of the overage he's claiming was seized from him.   If it's alot of money, a judge may feel that such a windfall to you is not justified and the judge may order that he gets back part of it.  But, again, it's up to support collection to iron this out with your ex -- and it's not your responsibility. Good luck... Read More

Hi Is the father's job on the books?  If so, you should be able to enforce a child support order through UIFSA.  However, if there's a warrant for his arrest for failure to pay and a contempt, then he will have to purge his contempt -- that means he needs to pay what he owes -- in order to avoid going to jail. The Family Court here will pursue him in NC and may do an income execution.   Also, if there is a judgment for monies owed for child support, the IRS can place a lien against any refund he's receiving.   You should give the IRS a call and see what you can do to ensure that happens. Good luck. Ilysa... Read More

Hi Are you anticipating not returning to the workforce at your old rate of pay?  If so, the Court can impute that income to you in any event.   Did your agreement provide for a Cost of Living Increase, either computed in the agreement or by statute, accordingly to the 3 year lookback that is now in effect?   You should be eligible for an increase in any event. If you go in for a modification due to your disability, expect that your former husband will demand that you pay a pro rata share of the add ons.  So, if you're earning 30% of the combined parental income, you will pay 30% and not half.  I would ask not merely for a downward modification (if you expect that you will be disabled for a long time) but a recomputation of your contributions towards add-ons. Your former husband's spouse's income is not to be considered for child support purposes.  However, if she is contributing to the household and is, consequently, decreasing his living costs, then a judge may look at that factor among others.  I wish you luck. Ilysa  ... Read More

Hi I'm assuming that you're paying support under a divorce agreement and/or judgment of divorce.   I'm also assuming that, if you had an agreement, one of the emancipation provisions is that a child changes residence.  However, most of the time, the emancipation provisions are not self-executing, ie., you can't just stop paying. I would suggest you go into Family Court in your county and file a petition for modification of your support obligations based on the fact that your son is coming to live with you.  Bring back up -- your agreement, divorce judgment, support orders, etc.  Your son certainly is old enough to know where he wants to live.   When your daughter graduates from college, you will also be entitled to terminate her support and that is self-executing, i.e., when she graduates, support is usually over under an agreement.  After that, your former wife won't be receiving any support from you.  Good luck! Ilysa... Read More

Hi Since i don't know where the support order was entered (I'm assuming somewhere downstate NY), the best thing for your fiance to do is to go into Family Court in your county (it's the cheapest way to go and he can represent himself), file a petition for modification of a child support order of another court (if the support was established in Supreme Court) and seek a reduction in his child support based on the fact that one of the children lives with him.  If there's an agreement between the parties, typically one of the emancipation events is that a child goes to live with another parent.  Unfortunately most of the emancipation provisions are not self-executing so you actually have to go to FC and file a petition for a modification in child support based on new facts.  You can't simply stop paying.  I would bring the agreement and/or judgment of divorce and any prior orders of support to the petition clerk.  Get there early in the morning.   Because Mom lives in another state, the FC here will handle dealing with a KY court so you don't have to worry about getting her served. I hope it goes well.  It's not that difficult a process but annoying. Ilysa      ... Read More

Hopefully your divorce stipulation sets out that you must consent to the expenses and be presented with a receipt before you are liable for these. If they are old, and she never presented receipts, then you shouldn't have to pay. You may want to consult an attorney about your rights.    Good luck!... Read More

Hi Without any kind of written agreement with respect to this issue, you are entitled to claim your daughter as a dependent exemption every year and to claim head of household as a marginal rate.   The tax code makes clear that the "custodial" parent has the sole right to claim the child as a dependent exemption; in fact, in the event that the parties agree to share the exemption by alternating years, the primary residential parent actually has to complete a form 8332 (IRS) which permits the non-custodial parent to claim the dependency. Tell your soon to be ex that he is wrong.  If he tries to claim your daughter, and you claim your daughter (where she lives 12 months a year), they will disallow his exemption, and charge him interest and penalties -- and perhaps audit him. I hope this helps. Ilysa Magnus    ... Read More

You have the right to petition for a modification to child support. Request that the support be increased because it fails to meet your child's needs and because the father's income has increased more than 15%. In addition, you have the right to file a modification every 3 years or at least 15% increase in his income. Good luck.... Read More

Yes you can file a complaint for modification. Just state that at the time you didn't realize that the amount that you are receiving was significantly less than the amount that the state statute offers you in your particular situation. Your best chances of course would be to hire an attorney to argue this for you, but the basic argument would be a complaint for modification of this child support obligations of your ex and basic claim on state statute is significantly larger than what you are being paid by your ex. I have responded to your inquiry according to the laws of Massachusetts, where my firm is located. Laws can vary significantly from state to state and cases tend to be rather fact-specific, so you are best served by consulting with a knowledgeable attorney in weighing your options. Email messages/Online Correspondence are akin to conversations and do not reflect the level of analysis applied to formal legal opinions. Email/Online responses do not form an attorney-client relationship.   Joseph F. Botelho, Esq.BOTELHO LAW GROUPAttorneys At Law901 Eastern Ave. Unit 2Fall River, MA 02723 Office:  888-269-0688FAX:    877-475-8147 http://massachusettslawyeronline.com/   #child, #support, #custody, #divorce, #lawyer, #attorney, #separation, #family, #probate, #alimony... Read More