Joint Custody & Child Support in New York

Happy Children Playing Kids

Happy Children Playing Kids (Photo credit: epSos.de)

Amongst the hardest things to deal with when getting divorced is providing for the best interests of any children of the marriage.  What some parents immediately think about is child support. The parent who is deemed to be the residential parent is the parent entitled to child support.  While that is easy enough to understand, it becomes tricky when both parents are residential parents, i.e. the children live with both parents exactly fifty percent of the time.  Many parents do this under the misconception that if they split the children exactly fifty percent of the time, child support will not be an issue.  This is not true as the parties in Leonard v. Leonard, found out in June of 2013.

The parties began an action for divorce and the issue revolved around child support.  The father was granted sole legal custody of the children.  This means, that while the parties should endeavor to consult each other regarding major decisions affecting the children, in the event the parties cannot agree, the father is the one who has final decision making authority.  Despite this determination, the parties were granted joint residential custody of the children.  The custody arrangement called for the children to spend exactly half the time with the father, and half the time with the mother.  Father earned approximately $134,000.00 a year and the mother earned approximately $14,000.00 a year, though the court imputed $25,000.00 a year income on the mother.

It is well settled that in a shared residency arrangement, where neither party has the children for the majority of the time, the party with the higher income is deemed to be the noncustodial parent for purposes of child support.  Thus, the father, who made more money, was ordered to pay child support to the mother.  Here is the rational that the law relies on.  An award of child support will best ensure that the children of the marriage will receive the maximum benefit of their parents resources and continue to enjoy, as close as possible, their pre divorce standard of living.  In other words, the Court wants to ensure that the children can enjoy living with both parents as much as possible.

When dealing with custody of your children, people often think about joint custody, sole custody, shared custody and child support.  Here is a simple way to think about these complex issues.  First and foremost, where are your children going to sleep?  Both parents generally want to be the residential/custodial parent, i.e. the parent where the kids will reside.    The benefits of being declared the residential/custodial parent include, having your children live with you, final decision making authority, and child support.   Amazingly, child support is a battle.  It is simply amazing the amount of cases where the issue is simply the payment child support.  One way people try and avoid this is to split the children equally.  As we have seen, this is a misguided approach to avoiding child support.  First and foremost, it requires the children to move from parent to parent practically every week.  Once the children are school aged, this may not be in their best interest.  Additionally, you need to consider whether avoiding or getting child support by disrupting your children’s schedule is what’s best for them.  In all likelihood, it is not.  Considering custody in a divorce and need help? Call a Long Island divorce lawyer at Divins & Divins, P.C., for a free consultation and we’ll help resolve all of your questions and concerns.

Enhanced by Zemanta

Modification of Child Support

English: MANAMA, Bahrain (Feb. 10, 2010) Instr...

(U.S. Navy photo by Mass Communication Specialist 2nd Class Aramis X. Ramirez/Released) (Photo credit: Wikipedia)

Once child support is established, the terms are normally placed in an agreement which is then used to facilitate your divorce.  This separation agreement which is normally incorporated but not merged into a judgment of divorce is a contractual obligation on the parties.  Thus, when entering into such an agreement, you must make sure that the terms are something that you can live with.  It is assumed, upon execution of this separation agreement that you have anticipated and have adequately provided for the child’s welfare.  If you later on decide that you want to change the terms of the agreement, the Courts will first look to the agreement and will only deviate from the terms of the agreement if the needs of the child are not being met.

Generally speaking, child support will not be changed unless there has been an unforeseen change in circumstances and a concomitant showing of need. What qualifies as an unforeseen change in circumstance?  That will be decided on a case by case basis.  The one change in circumstance which never works is when the paying spouse intentionally quits their job and then runs into Court claiming that they can no longer afford to pay child support.  If you have a child support obligation and you purposefully or intentionally quit your job, you will still be liable for child support at the amount in which you agreed in your divorce.

What if you lose your job due to no fault of you own.  That’s where the facts and circumstances of your matter come into play. Lets suppose you lose your job because the factory you were working at closed down.  Clearly, not foreseen nor anticipated.  You are not allowed to sit home and not work.  You are not allowed to claim you cannot pay for child support because you lost your job. It is incumbent on you to find another job.  Of course you can petition the Court to modify your child support, but you have to show the Court that you are actively searching for a job.  We advise our clients to immediately start looking for a job.  Go on interviews, attend job fairs do anything that can show that you are actively looking for work.  If you can show the Court that due to no fault of your own, you have lost your job but you are doing everything you can to obtain new employment, you maybe be able to get a modification of child support.

What if after your search, you immediately find a new job but it is substantially less than what you were making?  Again, it depends on the facts of your case.  If you were a doctor, and you took a job as a waiter, the Court will not look kindly to that as you are under employed. What if you were a waiter, and you obtained a job as a waiter in another restaurant.  Depends.  Were you a waiter and Ruth’s Chris and now you are at a local diner?  Maybe you’re underemployed, maybe you’re not.  Did you take this job pending other interviews?  Again, it all depends on your facts and circumstances and what you are doing to obtain employment.

If you are the one receiving child support and your spouse has stopped paying, you want to look into why.  If your spouse intentionally quit their job, then move for contempt.  The best interests of your child dictates that your spouse should not be allowed to quit a job to avoid child support.  What if the loss of employment was clearly not your spouse’s fault?   The best thing would probably agree to a temporary reduction in child support, pending new employment. If there is a legitimate change in circumstance, you cannot get money from a source that doesn’t exist. A temporary adjustment will give your spouse time to get a new job and shows that you are reasonable to the Court should you go that far.  Second, if you have to go to court, while you have tools to compel enforcement of child support orders, if there is a legitimate change in circumstance, how will spending time in family court help you get child support?  It won’t.  Thus, you have to know the reasons for the lack of support.  If there are valid reasons, we recommend working with your ex-spouse.  If there are no valid reasons, then Court may be your only solution.

If you need to modify your child support, or if you are being asked to modify child support obligations, contact us immediately so we can prepare the best case possible based on your unique set of circumstances.

Calculating Child Support

Contrary to the common perception, the child support calculation is really a black and white issue.  The Child Support Standards Act (“CSSA”) found in Domestic Relations Law §240 (1-b) explains exactly how child support is to be calculated.  Pursuant to the CSSA, child support is a percentage of combined parental income, minus FICA /Social Security taxes, capped at $136,000.00.  The relevant percentages are:  17% for one child; 25% for two; 29% for three; 31% for four; 35% for five or more however, the Court has discretion when setting the percentage for five or more children. So when considering what the child support obligation is going to be in any particular case, the first thing the Court will do is determine what the obligation is pursuant to the CSSA.

For example, if Spouse A earns $60,000.00 a year and Spouse B earns $50,000.00 a year, and there are two children of the marriage, the following calculations apply

Spouse A: Gross Income is $60,000.00. Subtracting FICA/Social Security, for CSSA purposes, Spouse A’s income is $55,410.00.

Spouse B: Gross Income is $50,000.00.  Subtracting FICA/Social Security, for CSSA purposes, Spouse B’s income is $46,175.00

Next, the Court combines the incomes: $55,410.00 + $46,175.00 for a total of $101,585.00  As there are two children in this example, the percentage set by the CSSA is 25%.  Thus, the child support obligation in this example is $25,396.25  a year.  Now that the obligation is determined, that number is split between the spouses on a pro rata basis.

Spouse A: $55,410.00/$101,585 = 55%.  So Spouse A’s obligation is $25,396 * .55= $13,967.80 a year, or  $268.61 a week ($13,967/52 weeks a year) or $1,155.00 a month ($268.61 * 4.3—the average weeks a month).

Spouse B: $46,174/$101,585= 45%.  So Spouse B’s obligation is $25, 396.25 * .45 = $11,428.20 a year or $219.77 a week ($11,428.20 / 52 weeks a year) or $945.02 a month ($219.77 * 4.3—the average weeks a month).

Here is where the battle usually occurs.  The spouse who has residential custody of the children will get child support.  So, in our example, if Spouse A retains residential custody, Spouse A will receive $945.02 a month in child support.  If Spouse B retains residential custody, Spouse B will receive $1,155.00 a month in child support.

If the combined income of the spouses exceed $136,000.00, then the Court will decide on what number to use to determine child support.  It is completely in the Court’s discretion and the Courts  look at a variety of factors in determining where to cap the child support obligation.  However, this will give you the basic idea on how child support is calculated.  There are numerous other factors which can come into play which will effect a person’s income for CSSA purposes.  For example, what if Spouse A must pay child support, but the reality is, even though Spouse A makes $55,410.00 for CSSA, that spouse is already paying child support to another child?  What if Spouse A’s income is not sufficient to provide child support pursuant to the CSSA and be above the poverty line?  These are common questions which need to be addressed when contemplating child support obligations.  Call for an appointment and discuss your options to ensure you are either receiving or paying the proper amount for child support.