Archive for the ‘Child Support’ Category

Can My Estranged Wife Petition The Court For Additional Child Support?

Friday, December 7th, 2018

Although child support payment is typically determined during the settlement process, there are instances where there is a modification that can be made post-divorce. The custodial parent, who is the parent receiving the child support, would have to file a petition with the court, to ask for a modification to the current child support order, which in this case is an increase in the amount paid.

The court will look for a significant “change in circumstance” in one or both of the parents’ lives, specifically one that would warrant a modification to the child support order. For instance, in a scenario where the custodial parent is seeking additional child support, the parent might cite the fact that the non-custodial parent has started to earn more money, and can now afford to pay more child support.

A change in income can also result in a modification, not only for an increase in support paid but in some cases a decrease. In some cases, the order might lead to a decrease in the amount paid monthly by the non-custodial parent if, for example, they lost their job. The resulting modification, in this case, would be a reduction in the amount the non-custodial parent has to pay.

Ultimately, a custodial parent can petition the Court for additional child support, and a non-custodial parent can seek a modification as well. In either scenario, to be awarded the modification they are seeking, they will have to show a significant change in circumstances in the child’s life or either parent’s life, financial or otherwise. Whatever the reason, it is the court’s decision to either accept or deny the modification.

Are Stepparents Required To Pay Child Support For Their Spouse’s Child?

Friday, August 31st, 2018

In general, the courts tend to not require a stepparent to make child support payments for the child of their new spouse, from their prior relationship. Moreover, when the courts are initially calculating child support payment amounts, they will not even include the stepparent’s earnings as a factor. However, just like with any other matter that comes before the courts, there are always mitigating factors that they determine have a substantial enough impact, and are relevant enough, that it warrants being included in the decision making process, and the facts of a case may require the stepparents income to be included when deciding child support payments for the biological parent. For instance, if the support-receiving parent marries someone that reduces the cost of living for them, then a court may reduce the child support award to reflect an appropriate amount with respect to cost of living.

An exception to this would be if the stepparent decided to adopt the child, in which case they would be personally liable for child support. However, in order for this to occur, the parent of the child, who is not their current spouse, would normally have to terminate their parental rights in order for the stepparent to even begin the adoption process. In a regular scenario, however, stepparent are not required to pay child support for the spouse’s child.

How Are Child Support Payments Made?

Monday, August 20th, 2018

As the parent ordered to make child support payments, there are multiple, acceptable forms of payment that you can submit your child support payments through. Sometimes, the Court might specify the exact method that they want the paying parent to use, if the circumstances regarding the receiving parent require a specific method.

The methods of direct payment, where one parent pays the other on a specifically set schedule, vary in terms of method of delivery, as well as when they are appropriate to be used. Cash is a very common method, but a major drawback is that there is no receipt given, and therefore it is a bit difficult to prove that payment had been made, if it is ever needed. Also, depending on the status of the relationship between the parents (whether or not they can coexist), it may or may not be feasible for there to be a face-to-face meeting between the two.

In order to avoid the in-person interaction, a check or money order can be made in lieu of cash. Although this leaves the possibility of the money getting lost, there is at least a form of proof of payment, or attempt of payment, that comes with this form of payment (although you wont always know when).

Sometimes, the Court has to enforce the payment of child support, and in this scenario, they often utilize their ability to enforce wage garnishments, to extract the demanded child support amount. This is done through the employer, as they will withhold the amounts from their income. However, this does require that the paying spouse has a job, and is not self-employed.

As technology has improved, online transfers are now an acceptable form of child support payment as well. But again, the Court can set the form before the parent even has the chance to decide, and it would be determined largely by the best way for the receiving parent to accept payment.

Can We Agree That There Will Be No Child Support Paid?

Monday, May 21st, 2018

Although there can be no instance where the court will allow that the non-custodial parent is not required to pay any child support, there is a matter of whether or not the custodial parent will collect, or enforce, these payments. In some instances, the court will not always know that a parent is not making custody payments unless the spouse that should be receiving said payments reports that they haven’t received any support. Beyond that, if the custodial parent does not feel like reporting the lack of payments coming in, then the non-paying parent is not likely to face any serious problems.

The reason that a court does not allow for no payments to be made is not actually about the parents, but rather the child. It is the child that is legally entitled to receive these payments (as that is who these payments are intended to benefit), up until they are 18. The most common way that child support orders come about is as part of a divorce process, along with the custody order. An example of this would be when the court is deciding which parent the child will spend the majority of time with, the next logical step would be figuring out how much the non-custodial parent will be paying in child support.

The other instance in which a child support order comes about is if the parents are not married, and the parent who the child resides with seeks some type of support. Although this can only begin after paternity has been established for both parents, herein lies the situation in which a parent is not paying child support without court enforcement. If the parents decide that the parent not living with the child does not need to pay support, as they are going to leave the child’s life or the support is not needed, and they never go to court about the issue, then in this situation, yes, you can agree amongst yourselves that there need not be any child support.

Are Child Support Payments Tax Deductible?

Thursday, May 17th, 2018

 

Many parents that are ordered to make child support payments reasonably assume that those payments can be claimed as a deduction, and are curious as to why they cannot list them as such on their tax returns. Their reasoning often comes from the fact that spousal support, or alimony, which many child support-payers also have to make, is deductible, and so therefore it would only make sense that you can claim child support payments as deductible as well.

However, this is not the case. This is an IRS issue, not a court issue, and so it is important to look at this issue from their perspective. Because these payments go towards supporting your children, these payments are considered as personal expenses. To provide some context, in their eyes, it is the same as if you were paying for your child’s expenses as you would if you and the other parent were married. But since you are separated, the custodial parent acts as a sort of middleman – the money you pay them goes towards payments for the children, just as if you were making the payment yourself for whatever their current needs are (food, clothes, etc).  In addition, not only is child support NOT tax deductible, but the parent who is receiving these child support payments may not list it as taxable income.

There is another way in which tax money and child support are intertwined. Suppose you are behind on your child support payments, and at the same time are expecting a refund from your federal taxes. If you are indeed behind on child support payments, and do not remedy this, don’t expect to see any of that federal tax refund money. The Treasury Department will be made aware of your “maleficence”  and will forward any tax refund you are entitled to, to your child’s state child support agency, who will then redirect that money to your child’s other parent, ensuring that your child receives the money that they are entitled to (remember, it is not the custodial parent that is entitled to receive this money for themselves, but rather for your child). Beyond that, there is no link between child support payments and taxes.

Can Child Support Be Suspended If The Father Does Not Believe He Is The Biological Parent Of A Child?

Sunday, March 25th, 2018

This is an issue that has been around for ages; men, not even necessarily husbands, being forced to pay tens of thousands of dollars in child support, and then, wouldn’t you know, it turns out they aren’t even the biological father. Emotions run high, and many of these men wonder if they will ever see that money come back. And the brutal, honest truth is that no, they will not.

Child support goes to the benefit of the child, and the court does not find that the child should be punished for this mishap. And the word mishap is used quite loosely, as it is very often that mothers will knowingly report the wrong man to be the father of their child (Maury Povich, anyone?), and happily collect the support payments for years. But it is important to note that some mothers are forced to name a father in order to receive state aid, so that they may collect a portion of that aid through child support payments made. And most of the time, when men receive this notice, they do the right thing and start making monthly payments, because why would they assume they are being duped if they can rationalize that they are the father?

However, a new advancement in science is being utilized to ensure that unfortunate common situations, such as unsuspecting men being forced to pay upwards of $20,000 a month to support a child that is not biologically related to them, from happening. A DNA test can be used to obtain a Disestablishment of Paternity, and through the DNA test, if it is established that the child is not the father’s biological child, the father can then file for termination of all support obligations. However, there are several stipulations in place for a man to disestablish paternity:

-There can be no child support owed when the Petition to Disestablish Paternity is filed

-DNA samples are obtained either voluntarily or via court order

-When the child was conceived during the marriage (if they were married), the child cannot have been a product of artificial insemination

-The child cannot have been adopted during the marriage

-The petition must have been submitted within 2 years of the birth of the child, or within two years of the father being notified he may not be the biological father.

So to answer the main question here, yes, there are ways to end child support payments if it turns out that the man making these payments is not the biological father. But it is important to understand the impact that will have on the child, and if, for their sake alone, it is worth making these payments, regardless if you are “blood relatives”. Being a father doesn’t require you to share the same DNA, and if you are happy to be involved in the child’s life as the father figure, you might want to consider holding off on the petition.

How Do Social Security Disability Benefits Affect Child Support In New York?

Thursday, February 15th, 2018

If your ex-spouse is receiving Social Security Disability (SSD) benefits, it is usually because they can no longer work due to their disability. The benefits are supposed to compensate for the pay that would have been made by your ex, had they not lost the ability to work.

The children of these disabled workers are entitled to something called SSD Dependency benefits, which are used to help take care of the child’s needs. If you are unable to work, and therefore make income, you are not the only one that suffers, so the Dependency benefits are there for the children.

However, being disabled does not excuse you from paying court-ordered child support, and the court is very certain on making sure that the children do not suffer because one of their parents is on disability. The court will usually allow the payer to use their Dependency benefit payments as part, or all, of their monthly payments. In other words, you can use some of your disability benefits to cover child support, and then fill in the remaining gap of what you owe with the Dependency benefit payments.

Note that if your spouse receives Supplemental Security Income (SSI), you will not be able to get any support payments from that. If your ex is collecting and owes support, the court or a Social Security officer can cut into those benefits, in order to put pressure on your ex spouse to make the appropriate payments.

How To Get A Child Support Order In New York

Thursday, November 30th, 2017

When the topic of obtaining a child support order is brought up, it is important to get a few key details out of the way early on. First, and most importantly, the parent who has custody of the child, and moreover the parent the child spends the most time with (sometimes referred to as having physical custody), is able to get child support for the child.

The most common scenario for this is when the two parents do not live together, and one parent has legal custody of the child. In this scenario, the custodial parent is the one receiving the child support from the non-custodial parent. Non-parental guardians (caretakers of the child that are not related to the child via paternity) are able to get child support from either one or both of the parents.

Another, less common situation is when the two parents did not end up getting married. In this case, the first step is to complete an Acknowledgment of Paternity or an Order of Filiation to establish paternity. The Order of Filiation is an order by the court that definitively names the father of a child. This sometimes includes a DNA test if the mother and proposed father cannot agree that he is the father, but usually there is no request for one. By being named the father, this parent now has the right to custody of the child as well as visitation rights, but also includes the potential responsibility of paying child support.

The Acknowledgment of Paternity involves the scenario in which the mother gives birth to the child out of wedlock. In this scenario, the child has no legal father, which means that the biological father has no rights or responsibilities to the child. The acknowledgment is therefore often done at the hospital following the birth of the child, and it names the father of the child and, like the Order of Filiation, gives him right to custody of the child and visitation rights, as well as bestowing upon him the responsibilities of child support.

To begin the process, the custodial parent must file a child support petition in family court. It is important to note that in almost all cases, the family court must be in the county or city in which the child resides. The non-custodial parent will be served a summons, which in this case will include the petition, as well as a financial disclosure form, which is included because that is a factor the courts take into consideration when deciding on the amount of support ordered.

If you have questions or need help in getting child support, contact Paul E. Rudder, Esq. today. Call 212-826-9900 to set up a consultation.

Related Articles:

If Both Parents Have Joint Custody Of The Child, Who Pays For Child Support?

How To Collect Past Due Child Support In New York

Should You Pay Child Support Through The Special Collection Unit (SCU)?

If My Ex Gets Married Can I Get More Child Support?

Monday, October 30th, 2017

A common misconception that some divorcees have is if their ex gets remarried, and is currently paying child support, then the amount owed per payment will go up. There is some logical thinking behind this; if they remarry, they have a second source of income in their new household. However, new marriages do no affect previous child support orders, because, almost exclusively, the only income that is included when the court decides the child support payments, is that of the direct parents or guardians.

What the custodial parent can do is request for a child support modification. For a court to accept this, there needs to be a substantial increase (or decrease) of income, or a drastic change in the overall circumstances. However, in some states, if your ex’s new spouse is well-off, and your ex’s income isn’t all that necessary to support the household, an increase is a possibility.

It is important to note a circumstance where a remarriage has an effect on the child support order. If your ex marries someone of significant wealth, the court will sometimes take that into consideration when reviewing a modification to raise the payment amounts.

Also, if your ex remarries and then has kids, this will constitute as a significant change in circumstances. Usually, first family children are given priority in terms of obligations, however depending on attendant circumstances, a judge may reduce child support if your ex’s income also needs to go to his new children.

If you have questions about child support and custody, please do not hesitate to contact Paul E. Rudder, Esq. Mr. Rudder has over 30 years of experience as a child support and custody lawyer in New York City. Contact him today at (212) 826-9900.

Should You Pay Child Support Through The Special Collection Unit (SCU)?

Saturday, August 5th, 2017

Many spouses feel that the best way to make child support payments is through the Support Collection Unit (SCU). The SCU is a service unit run by the government that not only aids in the collection and distribution of support payments, but also keeps computerized records of said payments, which leads to fewer disputes over whether or not a payment has been made, how much was paid, and if there are outstanding balances that need to be resolved.

The SCU can also assist in making sure that past due payments are paid by the supporting party, because they are a branch of the Office of Child Support Enforcement, and therefore have a certain leverage that a parent alone does not have.

Just as the court is able to “influence” a non-paying spouse to make payments via punishments, the SCU has the same power. Actions such as wage cuts and other income penalties are often used in order to get non-paying spouses to shape up.

Sometimes, the court does not automatically assign the payments to be made/received through the SCU. In that case, you would have to file a petition in Family Court to get a modification to the divorce judgment, which typically outlines how the child support payments will be made. Luckily, getting this change doesn’t require you to prove anything in court (unlike when you apply to have the amount changed).

Moreover, when you pay through the SCU, all of it is on record, so there is never a question of whether or not you made a payment. And when you receive through the SCU, you can be assured that if there are any problems, you have a government agency to help you rectify the issues.

If you need legal assistance regarding child custody and child support in New York, call 212-826-9900 to speak to an experienced family attorney. Paul E Rudder, Esq. has years of experience handling all types of child support and other family issues.