Modification of Child Support

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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.

Grandparent Visitation Rights


Domestic Relations Law §72 grants grandparents the right to petition for visitation with their grandchildren. This is different than granting grandparents the right for visitation. Simply put, grandparents, in certain circumstances, are allowed to request through the courts visitation with their grandchild. The first step in petitioning the Court for visitation as a grandparent is establishing that you are the grandparent of the child in question. Once this is established, the Court must determine whether one of two grounds has been satisfied. First, a grandparent can make an application for visitation where either or both of the parents of a minor child, residing within this state is or are deceased. If this is not the case, then the Court may allow you to petition for visitation where “circumstances show that conditions exist which equity would see fit to intervene.”

There lacks a specific test or set of criteria which would assist a Court, or grandparent, in determining what equities exist to grant visitation. As a starting point, the Courts have recognized a humanitarian concern that visitation with a grandparent is often an important part of a child’s experience, an experience that cannot be duplicated. Therefore, it is helpful if the grandparent(s) had a pre-existing relationship with the child in question. It is helpful but not necessarily essential. For instance, if the grandparent(s) are able to establish that they have attempted to have a relationship with the child however the parents have prohibited the relationship, a Court will take that into consideration when making its determination. This is an important fact. Even if both parents are in agreement that they do not want the grandparent(s) in question to see their child, a Court may allow visitation in the right circumstances.

Once the grandparent(s) are able to establish that they have the right circumstances in which equity would make sense for them to have visitation, a hearing is conducted. The hearing will determine whether the grandparent(s) may exercise visitation. The determination lies strictly in the Court’s discretion. In making its decision, the Court will rely on what it believes is in the best interest of the child.

LEARNING POINT: Grandparent visitation is a complicated matter with obstacles which have to be cleared. If you are seeking visitation as a grandparent contact us immediately to begin preparing the best possible case. The key will be showing that it is in the best interests of the child to allow such visitation.

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Person In Need Of Supervision


A person in need of supervision, or PINS, covers youthful misbehavior which does not amount to a crime. The Family Court Act §712 defines PINS as a male less than sixteen years of age and a female less than eighteen years of age who does not attend school in accordance with the provisions of part one of article sixty-five of the education law or who is incorrigible, ungovernable or habitually disobedient and beyond the lawful control of parent or other lawful authority or who violates the provisions of section 221.05 of the penal law. So what does this mean? Truancy or any other acts which parents and/or local authority are unable to control. Important requirement under PINS is that the acts be habitual. A single act of truancy, incorrigibility or disobedience does not suffice. Essentially a significant pattern must be present before a PINS case may be made. Of course, with most things, there is an exception. Acts involving marijuana need not be habitual and one act will be enough to make out a case for PINS.

A PINS case is formally originated by filing a petition in the Family Court which possesses exclusive original jurisdiction over PINS matters. There is a long list which can be found in the Family Court Act §733 of who can file or initiate a PINS petition. Examples of people authorized to file such a petition include a police officer, a peace officer, a parent or guardian or any person who has suffered injury as a result of the child’s activity. In reality, the overwhelming majority of PINS cases are filed by parents. Before a PINS case can be filed, it must first be referred to probation services. At probation services, a determination will be held to ascertain whether there are treatment programs which the child in question may be eligible. Probation services has 90 days or 180 days with leave of the Court, to assess and enroll a child in specific services. If these services fail, a statement must be filed along with the PINS petition informing the Court of what if any services were provided and the reason for failure. In the event that probation services fail to act within the allotted time frame, then you are allowed to file your PINS petition.

There are specific elements which must be pled in the petition. Specifically, the petition must show that the child in question meets the age requirements as mentioned above. Second, the child in question is in need of services. In addition, the child, and/or their guardian must be notified no less than 24 hours before the initial hearing. Once the petition is filed, upon the child’s first appearance, a law guardian will be appointed. Of importance is that the Court, in its discretion can order the release or detention of the child pending a hearing on the issues.

LEARNING POINT: PINS is a detailed and complicated process for children in need of services. Before filing a petition seek our assistance in preparing the petition and preparing the case. If the petition or case is not properly prepared, there will be a delay in providing the child in question with the services they may need.

My Spouse Wiped Out The Account, What Will Happen To My Money?


joint bank account divorce spouseI recently had a client come into my office wanting to get a divorce. Here was my client’s concern. The spouse in question, who apparently knew that a divorce was imminent, wiped out their joint marital account to the tune of $500,000.00. After this discovery coupled with the fact that my client was not informed where the money went, I was asked what will happen?!

Clearly this is a significant issue with respect to equitable distribution. On its face it is hard for a court to equitably distribute an asset that no longer exists when the action is filed. Automatic orders are meaningless as the money is already gone. Rest assured, the Court cannot and will not simply ignore this missing money. The issue for the Court to decide is whether there was any fraudulent intent on behalf of the spouse that took the money. Normally, the Court will not put itself in the position of second guessing every spending decision of the spouse accused of wiping out an account. There are a multitude of reasons a spouse may have when it comes to spending money from a joint account. Granted, in our example, a spouse will be hard pressed to explain how spending $500,000.00 happens in the routine course of daily bills. Where a spouse cannot provide an adequate explanation for what happened to the marital funds which disappeared on the eve of filing a divorce action, the Court will bestow an award based on the missing asset. Or in other words, my client needs not worry. The Court will equitable distribute the $500,000.00. This may come as credit to other assets, or an outright money award.

Rarely are cases so cut and dry. Here is a more typical example. Wife is a partner in a law firm. On the eve of filing the divorce she is fired from the firm. Husband now seeks to have her partnership evaluated as part of the equitable distribution award. The Court will need to look into the facts and circumstances of the wife’s termination at the firm. If the husband cannot show that the cfamily onduct, the firing, was aimed at depriving him of what would normally be distributed in the due course of the divorce action, the practice will not be valued and distributed.

LEARING POINT: If you realize a divorce is imminent, dissipation of marital assets will not be in your best interest. If your spouse does squander assets you will need to show that it was in an effort to cheat you out of what you’re entitled. Hire an attorney and let them advise you as to how best navigate these issues.

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