Understanding Child Support in the Context of Divorce

Here in New York, the process of calculating spousal support and maintenance in a divorce can be grueling and complicated. However, these calculations are basically guidelines, subject to judicial review and your own negotiations with your ex. However, if you have children, the process for calculating child support is a bit more rigid. The state has specific rules and formulas for determining child support. Let’s explore this topic in a bit more detail, so you know how it works and what to expect.

Child Support Is (Technically) Separate from the Divorce

According to Family Court Act Section 413, the state requires parents to support their children financially, whether or not they are married. Therefore, Family Court handles child support amounts for married and unmarried parents alike, while the Office of Child Support Enforcement (OCSE) oversees the payment of child support—and also holds non-payers to account. This means you can negotiate spousal support to some extent, but the state basically determines, and enforces, how much support your children will be awarded.

Spousal Support Factors into the Child Support Amount

New York provides forms and calculators to figure out estimated amounts of spousal maintenance (New York’s term for alimony) and child support. Unfortunately, many people make the mistake of calculating these amounts separately, and therefore they come up with incorrect numbers. In a New York divorce, the court will determine spousal maintenance first, then calculate child support with that amount in mind.

Why this differentiation?

Remember, according to New York law, both parents are financially responsible for their children, so child support will be determined based on the income of both parents. Accordingly, if you receive any amount of spousal maintenance, the state considers it to be part of your income and will also deduct it from your ex’s income.

As a custodial parent, the greater your ability to contribute to the needs of your kids, the less the judge will require the non-custodial parent to make up for your lack.

The Process of Calculating Child Support

While not an easy calculation, New York’s rules for determining basic child support are fairly consistent. Here’s how the state figures it:

  1. Determine the income of each parent after deductions. The deductions include:
  • Amount paid in taxes (e.g. state, federal and city taxes, Social Security and Medicare)
  • Amount paid in spousal maintenance
  • Amount paid in child support to other children
  1. Multiply the combined incomes of the parents by the following:
  • 17 percent for one child
  • 25 percent for two children
  • 29 percent for three children
  • 31 percent for four children
  • 35 percent minimum for more than four children
  1. Divide this amount between each parent on a pro rata basis according to their portion of the combined income. For example,  if one parent makes 30 percent more than the other, then the higher-earning parent will foot 30 percent more of the child support. NOTE: The state currently calculates these percentages up to an income cap of $148,000, after which, modifying these amounts is up to the court’s discretion.

Other Contributing Factors

The courts also have the ability to deviate from this base amount (up or down) based on a number of factors, including:

  • Children’s known standard of living
  • Cost of living adjustments
  • Financial resources or tax obligations
  • Non-monetary contributions of each parent
  • Special physical, psychological or educational needs of the children

The Court Sides with Your Child

When you understand how much support your child should receive, and how the state comes up with that amount, you become better equipped to fight for your child’s rights when necessary.

If your ex reneges on child support obligations, you can report it to the OSCE, and the state may take action to collect. Likewise, if your financial circumstances or other factors change, you can request a modification of the child support amount, to compensate for those changes.

Divorce doesn’t just affect you. It also affects your children, and, quite often, your ability to care for them. Understanding how child support works is essential for the children’s well-being.

Contact a Columbia County Child Support Lawyer for Help with Your Case

What to Know About Child Custody and Support

child support attorney
Parents thinking about divorce are often confused about the child custody and support process. Maybe you wonder if your future ex-spouse will provide the financial support you will need to raise your children. Perhaps you or your children have been the victims of domestic abuse. Or you fear losing custody of your children during court proceedings. Whatever your concerns, before you begin the divorce process, it would be useful to acquaint yourself with child custody and support process, so you can prepare for it accordingly.

Who Will Get Custody?

Probably the biggest concern divorcing parents face is the question of custody over their children. The easiest way to resolve the matter is to come to an agreement with your spouse. Assuming all parties agree, then custodial plans will be part of the divorce settlement. If divorcing parents can’t reach an agreement over child custody, or there is a cause for concern (e.g., when there is an abusive parent), then the court will determine custody of the child.

To rule on custody, a court will decide based on the “best interest” of the child. There isn’t a specific legal definition for “best interest.” Instead, the court considers a host of factors including a child’s wishes; the fitness of one parent over the other to care for the child; abuse allegations; and parental drug or alcohol addiction.

In New York, the “child’s health and safety shall be the paramount concerns” when making a decision.

What Types of Child Custody are There?

There are four types of child custody that affect physical (i.e., residential) custody of the child and parenting of the child (i.e., who can make decisions for the child):

  1. Sole legal: One parent has the power to make all the major decisions involving the child without the need for consent from the other parent. The non-custodial parent does not have access to medical or educational records and providers.
  2. Primary physical: One parent has more than 50% of the physical custodial time with a child. This includes all cases of sole custody and most cases where there is joint legal custody.
  3. Joint legal custody: Parents must consult and agree on all major decisions involving the child. Both parents have access to all medical and educational records and providers.
  4. Joint/Shared physical: Parents share physical custody of the child, usually with an equal or nearly equal split, with the child splitting half of the time with one parent and half with the other.

The Difference Between Custody and Visitation?

Except in extreme cases, when a judge grants one parent sole custody, the court will still usually grant visitation rights to the other. Legal custody and visitation (parenting time) rights are separate legal decisions, although the court will often decide them at the same time.

Visitation (parenting time) rights also aren’t solely for a parent. Grandparents, siblings and in exceptional circumstances, other relatives can also request visitation rights (although a court will usually decide these requests outside of the divorce itself as the grandparent or other family member is often not a party to the divorce action).

A court will often encourage parents to agree on a visitation schedule. If the parents can’t reach an agreement, the court can and often will step in to set a temporary parenting schedule to be followed during the pendency of the divorce action.

Can Child Custody and Support Be Decided During a Separation?

Yes. Parents can come to an agreement regarding child custody and support during negotiations of the separation agreement. They can then include the provisions of the settlement agreement/stipulation in the divorce decree. However, a parent can still attempt to change an arrangement during the divorce case if a change of circumstances can be shown.

How is Child Support Determined?

New York law states that the noncustodial parent must pay child support to the custodial parent until the child reaches 21. The non-custodial parent is the one who has less than 50% of physical custodial time with the child.

When the parents equally split custodial time 50/50, the law states that the parent with the higher income is the non-custodial parent for the purposes of the child support calculation.

The amount of child support paid to the custodial parent is based on a percentage of the non-custodial parent’s gross income after deductions for FICA withholdings. In New York, child support payments would be 17% of the adjusted income for 1 child; 25% for 2 children; 29% for 3 children; 31% for 4 children, and no less than 35% for 5 or more children.

What If the Parent Doesn’t Pay Child Support?

Failing to pay child support is a serious matter. A state’s child support enforcement agency will first contact the non-custodial parent to inform him that he is in arrears. If the parent still fails to pay, the agency has the power to retrieve the money from tax refunds and bank accounts. The agency can also notify credit agencies and suspend the non-custodial parent’s driver’s license. In extreme cases, a court can sentence the parent to jail.

If the non-custodial moves out of state, the agency will work with the other states’ authorities to perform these actions.

Can the Amount of Child Support Change?

Yes. Changes in the cost of living and the amount the non-custodial parents earns can alter child support payments. Every two years, the child support enforcement agency will review your case to determine if the amount should be changed. While the agency has the power to make these adjustments without going to court, a non-custodial parent can challenge these changes.

Major Factors in Child Custody and Support

Major Factors in Child Custody and SupportThere are many things to iron out when a couple divorces. Who keeps the marital home? How will money be split? What will happen to the family pets?

If children are involved, child custody and support are also considerations. Should you opt for joint custody? Will you receive child support? Will you be forced to pay it if you have custody?

Contrary to what many believe, the courts do not favor the mother. To be sure, in years past, because mothers tended to spend more time with the children, they were more likely to be awarded custody and support. However, in today’s modern society, a father has equal rights as the mother of his children.

Ultimately, the court focuses on the best interests of the children when making custody decisions. They want to ensure that children have financial support as well, which is why child support may be awarded, as well.

What other factors go into determining child custody and support? The following highlights a number of considerations under New York law.

Determining Child Custody

When making determinations about child custody, the courts look at which parent is the better caregiver. Is one parent a stay-at-home mother or father? If both parents work full-time, which one primarily cares for the child? Who takes the child to school, medical appointments and activities?

The judge will assess the strengths and weaknesses of both parents. The parents’ physical and mental health will also be assessed. The judge will also look at the parents’ work schedules and child care plans. For example, if the mother works outside of the home full-time and keeps the child in daycare, while the father works from home, then the child might be better suited to stay with the father during the week.

Determining Child Support

The parent who does not have custody of the child most of the time will likely be asked to pay child support. Child support is used to help families become self-sufficient so they can comfortably pay for their children’s expenses.

Child support payment amounts are not set in stone. They are based on the income of both parents as well as the needs of the children. For example, parents who earn more money will be expected to pay more than a parent who earns just minimum wage. Every state has its own guidelines for determining support.

Child support is used to cover various expenses such as food, clothing, shelter, medical care, transportation, child care, extracurricular activities and higher education. If a child has expensive medical needs, such as a chronic condition, the non-custodial parent may be asked to pay more than usual.

Contact a Columbia County Child Support Lawyer for Help with Your Case

Divorce becomes exponentially complicated when children are involved. The courts will look at the best interests of the children when determining child custody and support. The goal is to make the transition from marriage to divorce as easy as possible on your children.

Get the help you need with child custody and support matters by contacting a Greene County child custody lawyer at The Colwell Law Group. We can assess your situation and help create a plan that benefits you and your children. Give us a call today at (518) 512-0544 to schedule a consultation.

Income Change After Settling Support

Income Change After Settling Support
A parent’s child support obligations are based on their income. The state of New York has
official guidelines that are typically used to calculate the total amount of child support that will be owed in a particular situation. For example, under these guidelines, a parent who owes support for one child is presumed to owe 17 percent of their income in child support payments.

Of course, a person’s income is not static. You and your partner could reach a reasonable child support settlement. That agreement could work very well for multiple years. However, if you see a major income change, that child support settlement may no longer be fair or workable. In this situation, you should consult with an experienced Albany child support lawyer. You may be entitled to a child support modification.

The Steps You Need to Take to Get a Child Support Modification in New York

  • You Should Carefully Prepare Your Financial Records

If your income has changed and you are considering seeking a child support modification, you need to carefully gather and assemble all of your financial records. This means that you should get copies of your pay stubs, your tax records, and any other relevant income statements. With this information, you will be able to clearly document your current income level.

  • You Must Demonstrate that You Qualify for a Modification

Under New York state law, you can only seek a child support modification on the basis of an income change if you meet one of the following three criteria:

    • Your life circumstances have ‘substantially’ changed;
    • Your net income has increased or decreased by at least 15 percent; or
  • Three years have passed since the child support order was initially issued.
  • You May Be Able to Reach an Out-of-Court Settlement

One option to adjust your child support is to go directly to your former partner. Certainly, this is not always the best option; it depends entirely on how willing your former partner is to make a reasonable agreement. However, when possible, an out-of-court child support settlement can offer the most efficient means to achieve a reasonable, fair modification.

  • You Should Be Represented by a Child Support Lawyer

Whether you are attempting to negotiate a child support modification, or you are considering taking your case to court to get a modification, you need to be represented by an experienced Albany child support attorney. Your attorney will be able to ensure that all of your evidence is properly prepared so that your child support obligations are reduced to an appropriate level given your current income.

Contact Our New York Child Support Lawyers Today

At The Colwell Law Group, LLC, our New York child support attorneys have extensive experience handling cases involving modifications on the basis of income changes. If you or your former partner has experienced a significant income change, and now you are seeking a child support adjustment, please contact us today for immediate legal guidance. From our offices in Albany and Saratoga, we serve parents throughout the region, including in Montgomery County, Otsego County, and Rensselaer County.

Child Support Across State Lines

Child Support Across State Lines, The Colwell Law Group
New York State law, parents have a legal obligation to provide support for children until they reach the age of 21 years. While this may seem a simple concept, disputes often arise over the amount of child support and how it relates to custody and visitation. At times, a parent may even need to pursue legal action to enforce a child support order.

When parents live in different states, the situation can be even more complex. Your rights and obligations are the same in many ways, so you should discuss your circumstances with an Otsego County child support lawyer. Still, you may find it useful to review some information about child support across state lines.

How Child Support Obligations Arise

Under the New York State child support law, a parent may have the legal responsibility to pay child support to the custodial parent when ordered as part of the divorce process. However, the obligation may also arise when parentage is established through a Voluntary Acknowledgement of Paternity or in official court paternity proceedings.

Regardless of the details, child support may extend across state lines in one of two situations:

  • The child’s parents reside in different states during the divorce process or after establishing paternity; OR,
  • Parents both reside in New York, but one needs to relocate for a job, family, or other reasons.

Enforcement of Child Support Orders

The legal obligation to pay child support is not extinguished if parents live in different states or one moves. The Uniform Interstate Family Support Act (UIFSA) applies to all states, including New York. This statute contains provisions on the procedures for enforcing child support obligations, making the process consistent even for different states. UIFSA also covers:

  • Withholding income from the payor’s wages;
  • Diverting tax refunds for purposes of satisfying child support;
  • Filing a lien on property to meet child support obligations;
  • Reporting delinquencies to credit bureaus; and,
  • Other methods of enforcing child support.

Child Visitation Across State Lines

Visitation rights do not cease if parents live in different states, but they may be affected by distance. Logistically, it may be more difficult for a parent to exercise visitation rights. The situation will also have an effect on child support for various reasons, such as:

  • If a parent moves for a job with an increased salary, this will impact the amount of child support;
  • When parents have roughly equal visitation, child support tends to be lower because each parent is contributing during their time with the child. Relocation will limit equal visitation, so the non-residential parent may need to shoulder more of the burden.

A New York Attorney Can Assist with Child Support Across State Lines

Please call the Colwell Law Group, LLC at 518-864-0564 or visit our website if you would like to know more about child support in different states. We have been representing parents in child-related issues in the Capital Region and Upstate New York since 2005, so we have the experience and knowledge to advise you on your rights. Our child support lawyers are happy to explain your legal options after conducting a consultation to review your circumstances.

What are My Options if I Can’t Pay Child Support?

What are My Options if I Can't Pay Child Support?
Are you falling behind on your
child support in Albany, New York? If so, you need to take immediate action to protect your rights. The failure to keep up with your child support obligations can result in considerable penalties. Here, our top-rated Schenectady County child support lawyers explain why you need to take action to protect yourself and we highlight the legal options that you may have available to you.

Why You Need to Take Action If You Are Unable to Pay Child Support

Under New York law, child support obligations are based on both the needs of the child and the parent’s financial ability to pay. If you simply stop making child support payments, you could face substantial penalties. Indeed, depending on the specific facts of your case, delinquent child support could result in:

  • Wage garnishment;
  • Seizure of property;
  • A lien being placed on your home or vehicle;
  • Loss of your New York driver’s license;
  • Confiscation of your tax refund;
  • Large fines; and
  • In some cases, jail time.

The good news is that if you take action, you may be able to avoid some, or all, of these penalties. Remember, child support obligations are, in part, based on your ability to pay. If you lose the ability to pay, you may be entitled to have your child support payments reduced.

Get Your Child Support Order/Agreement Modified in New York

You should never just stop paying child support without warning. If you cannot make payments, for whatever reason, you need to look into your available options to get the child support order or child support agreement modified. As a general rule, there are two ways to get your child support payments modified:

  1. You can reach a voluntary agreement with your former partner; and
  2. You can get a New York court to approve a modification of your child support obligations.

Your best option is always to start with voluntary negotiation. If you lost your job, incurred large medical bills, or had some other life event that made you temporarily unable to make full payments, you may able to reach an understanding with your former partner. Of course, this takes some good faith cooperation from both sides. Unfortunately, reaching an agreement is not always possible.

If you former partner refuses to give any ground, and you simply cannot pay, you need to take your case to court. Under New York law, family law courts have the authority to reduce child support obligations if you can prove that you genuinely cannot afford the current payments, even though you have made good faith efforts.

Contact Our Albany, NY Child Support Attorneys Today

At The Colwell Law Group, LLC, our New York child support lawyers have helped many parents who are unable to keep up with their child support payments. If you are falling behind on child support, we can help you explore your available options. We have offices in Albany and Saratoga Springs, and our child support lawyers serve parents throughout the region, including in Rensselaer, Rotterdam, and Greeneville.

The Colwell Law Group, LLC.  Coronavirus (COVID-19) Notice on Continued Operations

(updated 3/23/20 9:15 am)

The global impact of Coronavirus has been unprecedented, and just as each of you, we are taking the situation one day at a time.  Our thoughts go out to all who have been affected by the outbreak of coronavirus (COVID-19).  Please know that the Colwell Law Group takes the safety and wellbeing of our clients and team members very seriously. In accordance with the firm's emergency response plan, all team members have begun working via secure remote connections.  However, 100% of our regular operations will continue uninterrupted via these remote connections.

Most court clerks remain open to accept new filings and motions.  Emergency applications can still be heard.  However, previously scheduled appearances have been adjourned until further notice.  If you have a scheduled call or meeting with any member of the CLG team, you can expect it to proceed as scheduled.  Given the situation, all such meetings will take place over the phone or video conference until further notice.

Thank you for your understanding and patience during these trying times. We know that your family law issues do not just disappear because we must shelter in place.  In fact, in many situations the quarantine will only serve to make these issues worse.  CLG stands ready to help!  We are dedicated to serving your needs in this new normal and further your best interests as always.  While the developing situation surrounding COVID-19 is serious, at CLG we’re focused on combating fear with proactive solutions rather than reactive retreats.

For further information, please contact our Director of Operations, Jennifer Stevens at Jstevens@colwell-law.com or 518-462-4242. Thank you.