Spousal Support And Child Support
Typically, the custodial parent (i.e., the parent who has the child for the majority of the time) will be the person filing for child support against the other legal parent. However, there may be a question as to the identity of the other legal parent.
When a child is born in New York, the father will usually file an acknowledgment of paternity and his name will be on the birth certificate. If that doesn’t happen, then the mother would have to establish paternity prior to filing for child support. To do so, she would file a paternity petition.
Paternity can be agreed to between the parties, or either party can request a DNA test to prove paternity. When paternity must be established for the purposes of obtaining a child support order, the paternity case will be converted to a child support case, and then child support would be determined.
In New York, child support is determined using a mathematical formula based on the number of children that the parties have in common. The FICA tax (i.e., Social Security and Medicare tax) and New York City income tax are subtracted from the non-custodial parent’s income, and a percentage of the remaining income would be allocated to each child.
Several other expenses are considered in the determination of child support, including child care expenses, unreimbursed medical expenses, and educational expenses. These expenses are divided pro rata (i.e., according to the income of the two parents), which means that if one parent has twice as much income as the other parent, then that parent will be responsible for two-thirds of the expenses.
Spousal support is also determined using a mathematical formula based on the incomes of the two parents, as well as a consideration of which parent is paying child support.
Child Support Order Modifications
Either parent can file a petition for a modification to a child support order. Typically, the custodial parent will file a petition for upward modification, and the non-custodial parent for downward modification.
Once two years have passed since the child support order was entered, a request for modification can be filed. If two years have not passed, then the parent who files for modification must show that there has been a change of circumstances since the order was entered. For example, if the parent who is paying child support has lost their job, received a pay cut, become disabled, or otherwise lost income, then they could file for a downward modification of child support.
The parent requesting a downward modification would have to show that the decrease in income occurred through no fault of their own, and that they have been making efforts to obtain a new job (or another source of income). The party would have to complete a financial disclosure affidavit showing their expenses, debts, and income; the other party would have a chance to dispute this.
These cases are typically handled by support magistrates rather than judges. The support magistrate would hear all of the facts and make a determination as to whether the child support amount should be reduced.
The parent who is receiving child support can file for an upward modification of child support so long as they can show that the paying parent’s income has increased. Obtaining an upward modification tends to be a bit easier than obtaining a downward modification because there are costs of living increases that sometimes automatically kick in.
It’s not always easy to obtain a child support modification, and it helps to have the assistance of a lawyer.
For more information on Spousal Support And Child Support In New York, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (718) 557-9767 today.