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Wednesday, October 8, 2014

How to Win your Child Support Case in Family Court, Part 2

 

In Part one of this series I discussed the Initial de novo child support filing in New York Family Court. In this proceeding you are asking the Family Court to make a child support determination.  The Child Support Standards Act utilizes a formula in determining the Presumptive Amount of Child Support. From this presumptive amount you can determine the presumptive amount of child support the non-custodial parent is to pay.

Presumptive Amount of Child Support Formula

 

 

Custodial Parents Yearly income + Non-Custodial Yearly Parents Income = Combined Parental income

 

Non-custodial parents yearly income divided by Combined Parental Income = Non-Custodial Parent’s Pro rata percentage share

 

Non-Custodial Parent’s Pro Rata Percentage Share multiplied by Combined Income = Presumptive Amount of Child Support for Non-Custodial Parent for the year

 

If you want to figure out the non-custodial’s parents amount per month you divide the Non-Custodial yearly amount by 12, by 52 to determine weekly amount and by 26 to determine bi-weekly amount.

If you do not feel like doing Algebra, you can always go to the Child Support Standard’s Chart to determine the appropriate amount.

The Court applies the non-custodial’s pro rata percentage not only to income but also to determine the parental share of ad ons like medical insurance, day care expenses and unreimbursed medical expenses. The Court also has discretion to have non-custodial parent pay for private school and college expenses pursuant to their pro rata share.

Determining Income

When both litigants are wage earners with W2s, calculating income is rather easy.  When there is a self-employed litigant involved the child support determination may be more complicated. The Court will need to determine what the total Gross Income of this self-employed person is.  This is much more apparent with a person receiving paystubs. If you believe respondent’s income is not accurate it’s your (petitioner’s) burden of proof to prove income should be higher. The court can also consider other factors in making its determination like social security income, disability income, investment income perks, rental income etc.

Once income is determined, the Court will deduct FICA, other child support payments being made and any maintenance being paid pursuant to court Order from the non-custodial parent’s gross income. You will need to bring to Court any Orders that you want to have deducted from income. Voluntary payments of the above are not deducted.  If you are self-employed the Court will also deduct reasonable unreimbursed employer business expenses.  The self-employed must bring in good proof of these expenses.

The Court is allowed is allowed to deviate from presumptive amount but must calculate the presumptive amount and provide sufficient reasons under statute for the deviation. This applies even to out of court deals that are brought to court and that serve as a basis for a child support order. The Court also has the authority to consider if the presumptive amount is unjust.  This determination is also based on statutory factors.

Once a child support determination is made, the custodial parent has the option to receive payments directly from the payee of the support or elect to have the payments collected through the Support Collection Unit (SCU). The benefits of SCU collection is that it keeps track of money paid and any arrears. It also makes it much more difficult for a non-complaint party to avoid paying because SCU, through an Income Deduction Order, takes payment directly out of the payee’s paycheck. A self-employed individual will have to pay SCU directly.

Any arrears of child support will be calculated retroactively from the date of filing of the initial petition. The Court cannot calculate arrears prior to the filing date even if the non-custodial parent hasn’t paid support for a long period of time prior to filing.

If you have any questions or are looking to hire a Brooklyn, New York Family Court Attorney to help you with your child support case, call me at The Gilmer Law Firm, PLLC.  Thank you reading this article.  Please click here if you want to sign up for my newsletter.  


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