718.864.2011Request a Consultation

Child Support

Monday, December 22, 2014

Wallace v. Wallace - On Calculating Child Support in New York

While New York City family courts are granted a broad range of discretion with regard to determination of child support, they are guided by Section 413 of the Family Court Act. The law offers a general percentage and dollar amount for support, depending the number of children and income of paying parent.

So for example, as of March 2014, a parent with one child must pay 17 percent of his or her income in support. If his or her annual income is between $45,000 and $45,099, the amount of the annual obligation will be $7,650, or $637 a month. If two children are involved, that parent will be required to pay 25 percent of his or her income, up to $11,250 annually, which breaks down to $937 a month. The maximum amount a parent can be compelled to pay is 35 percent. So if a parent in that income bracket has five children, the most that parent could be compelled to pay is $15,750 a year, or $1,312 a month.

But again, these guidelines are general. The courts may take into consideration the income of the other parent, special needs of the children and any relevant mitigating or aggravating circumstances.

Our New York City child support lawyers recognize these can be complex matters, and it's our goal to ensure your rights are protected and interests furthered.

Although child support payment amounts can be modified once set, that can only happen when one party can show a material change in circumstance, such as loss of a job or remarriage. Barring that, payment amounts will not change. That's why it's so important to make sure you are properly represented in the initial phases of negotiation, when child support is first being set.

While family law provisions can vary from state-to-state, most adhere to this "material change" requirement when considering whether to modify support payments.

The recent case of Wallace v. Wallace, before the Georgia Supreme Court, involved an appeal of an initial order, where mother of three minor children alleged the court wrongly calculated child support payable by the active duty serviceman father. The pair agreed to joint legal custody, with mother granted primary physical custody.

The court awarded a child support amount of $1,300 monthly, but allowed for a a deviation of $400 monthly in travel expenses so he could see the children. That meant the actual support payments would be $900 monthly.

Mother later appealed on the grounds of allowing that $400 deviation. The court never indicated how the deviation from the presumptive amount would benefit the best interests of the children, and therefore failed to satisfy one of the basic foundations of family law.

The Georgia Supreme Court agreed, and also found the trial court erred in not considering father's $3,555 monthly housing compensation as part of his gross monthly income. Therefore, the court reversed and remanded for further proceedings.

We understand these cases can be both sensitive and complex. In order to ensure your rights are protected and your children are provided for, consult with an experienced legal professional.

If you are contemplating a divorce in New York City, call our offices at (718) 864-2011.

Additional Resources:

 Wallace v. Wallace, Nov. 24, 2014, Georgia Supreme Court

More Blog Entries:

How to Win your Child Support Case in Family Court, Part 2, Oct. 8, 2014, New York City Child Support Lawyer Blog

Saturday, June 7, 2014

Brooklyn Child Support Modification Requests Must be Preceded by Significant Changes

Court-ordered child support payments are set based on a number of factors, including both parties' income, obligations and the needs of the children.

Given that such careful consideration is made to the determination of this figure, Brooklyn child support modification attorneys are well aware that judges aren't inclined to modify the original order unless there has been a material change in circumstance.

The term "material" is one that is widely left open to the interpretation of the court. For example, if you were laid off from your job and are only accruing unemployment benefits, the court may agree to temporarily reduce your payments. Alternatively, if you are fired from your job because you didn't show up or failed a drug test, the court may determine this is a willful violation, and in turn refuse to modify your payments.

It's going to be up to your lawyer to make the best possible argument in your favor.

In the recent case of Garza v. Garza, before the Nebraska Supreme Court, the justices were tasked with determining whether the family court's grant of a father's child support modification request was proper, as the decision was appealed by the mother.

According to court records, the pair were married in the summer of 2005. Not six months later, a son was born to them, and that same month, the mother filed for divorce against the father.

The original divorce decree/parenting plan allocated primary custody to the mother, with weekend visitation given to the father, who was required to pay $500 monthly in child support.

In early 2010, the father was unemployed and subsequently moved out-of-state to obtain work. He later filed a motion for a material change in circumstance, based on his lesser-salaried new job and his out-of-state move.

The mother subsequently filed an order to show cause why the father shouldn't be held in contempt for willfully and contemptuously violating the earlier court ruling. He was indeed found in contempt, based on his being nearly $8,000 in arrears in child support, plus another $10,600 he owed her for child care expenses and $31,000 he had yet to pay her per the divorce property settlement.

The court agreed to purge his contempt if he paid $3,000 in child support upfront and kept current on his subsequent payments. He did so, and the contempt was purged.

However, soon after, he was laid off. He filed an amended application for modification, citing not only his new unemployment, but also the fact that the child had since become school-age, meaning day care expenses were significantly reduced.

The court did ultimately reduce his payments from $500 monthly to $305 (rejecting his request to make them $50 monthly). It also determined the mother was not required to meet the father half-way to aid in his visitation so long as he remained unemployed, and that once he had again found work, he was to pay her $2,500 in attorneys' fees.

He appealed on the grounds the court erred in reaching the transportation arrangement it did and insisted his payments should have been further reduced and that he should not have to pay his ex's attorney. The mother cross-appealed on the grounds that the court erred in slashing the child support award.

The state supreme court upheld the modification, finding no reversible error.

The court could find no indication that the father's two bouts of unemployment were the result of bad-faith, and they did constitute a material change in circumstance that warranted a reduction of child support. Still, the court weighed his earning capacity, as opposed to his actual income, in determining what the set rate should be. This, the high court ruled, was appropriate.

For the most part, judges aren't interested in creating a windfall for one parent or leaving the other destitute. They do generally strive to reach a fair conclusion that is ultimately in the best interests of the children involved.

Still, having an experienced legal advocate to sympathetically explain to the court your circumstances will help allow you to provide for your children in a way that is  adequate, fair and manageable.

Those with questions about Brooklyn child support modification petitions should call our offices at (718) 864-2011.

Additional Resources:

Garza v. Garza, May 23, 2014, Nebraska Supreme Court

More Blog Entries:

U.S. v. Fuller - Failure to Pay Child Support Results in Severe Consequences, May 28, 2014, Brooklyn Child Support Modification Lawyer Blog

Wednesday, May 28, 2014

U.S. v. Fuller - Failure to Pay Child Support Results in Severe Consequences

The criminal conviction of a deadbeat dad was recently upheld by the U.S. Court of Appeals for the Tenth Circuit, where the defendant in U.S. v. Fuller was ordered to pay $54,000 in restitution to the mother of his three (now-grown) children and serve time on probation.

New York City child support attorneys understand that this was the conclusion of a years-long effort to find this man and collect. We are dedicated to ensuring our clients won't have to endure such an ordeal, and that payments can be secured in a timely manner, while the children are still minors and can benefit from those payments - which is the whole point of child support.

One of the most common actions taken against parents who don't pay child support in New York is a contempt proceeding, initiated by the parent to whom the money is owed. These are among the few instances in civil cases where a person can be ordered to serve time in jail. Incarceration can be ordered for an indefinite period until payment is made. The non-paying parent could also be sentenced to a jail term as punishment for failure to comply with the court's earlier orders.

The key to successfully pursuing this option is to prove the non-paying parent has the ability to pay and has willfully failed to do so. The non-paying parent could have a successful defense if he or she can show that they legitimately did not have the ability to pay.

In some cases, the court may find that a parent's lack of a job isn't an excuse. If the court finds the non-paying parent willfully avoided gainful employment, he or she could still be held in contempt.

In pursuing claims against a non-paying parent who lives out-of-state, it's important to understand that the federal Uniform Interstate Family Support Act gives sole jurisdiction to the court in which the child support order was issued.

Additional federal legislation - including the Child Support Recovery Act and the Deadbeat Parents Punishment Act - allow for additional penalties for parents who refuse to pay.

It was under these acts that the defendant in the Fuller case was prosecuted.

According to court records, the couple met in the late-1970s when they both worked at an aviation parts supplier. The two married, divorced and then married again by 1983. Over the course of the next 10 years, the couple had three children.

During this time, the husband quit his aviation parts job to work full-time as a musician. This became a spot of contention in the marriage, as his earnings were meager and there were difficult financial realities involved in providing for three children. The wife would later say that while she believed her husband was talented, he had chosen his music over his children because he refused to get a "real" job, while she worked full-time and had to place the children in daycare.

Eventually, the pair divorced. The husband did not attend any of the hearings, but was ordered to pay a little less than $400 a month in child support. 

He did not. While the wife worked full time, put herself through college and raised the children on her own, the husband sporadically made payments, but none of any significance and never with regularity.

In 1996, the mother sought help in enforcing the child support order, but was deterred by the fees.

More than a decade later, the federal government pursued criminal action against the father. The court called to testify his ex-wife, as well as several club owners who had paid him to perform and child support personnel who had for years attempted to locate him and make him pay.

During trial, the father argued that the government's evidence had shown, at most, that he had only earned $5,200 over the course of 17 years (when the child support order was in effect), and that he lacked any ability to pay.

The court rejected this theory, convicted him and ordered him to serve five years of probation and pay $54,000 in restitution to his ex-wife.

He appealed, but the federal appellate court affirmed the earlier verdict.

If you are seeking enforcement of a child support order New York City, call our offices at (718) 864-2011.

Additional Resources:

U.S. v. Fuller, May 13, 2014, U.S. Court of Appeals for the Ninth Circuit

More Blog Entries:

Brooklyn Child Custody Cases Can be Impacted by Drug Abuse, May 20, 2014, New York City Child Support Attorneys

Saturday, February 1, 2014

Brooklyn Child Support Modification Requests, Voluntary Job Loss and Imputing Income

Child support modifications in Brooklyn are warranted for all sorts of reasons, including a significant change in circumstances, the passage of three years or more since the last order or the paying parent's income fluctuation by 15 percent or more. 

The court will weigh these requests carefully, but none of the above factors is a guarantee that anything will change. A good example of this would be that the court finds a paying parent's downward income fluctuation was due to a voluntary job loss, and therefore rules that support will be based not on actual income, but rather by imputing income. This means the court will base your income for child support purposes on what a person earned in the past or what he or she is capable of earning, based on factors ranging from education to employment opportunities. 

This is essentially what happened in the case of Schwalk v. Schwalk, reviewed by the Supreme Court of North Dakota. A district court denied a father's request to modify his child support, which had recently been increased from $210 monthly to $930 monthly. He attempted to have it lowered to $350, but the court rejected his reasoning, and the higher courts affirmed this stance. 

According to court records, the mother and father had divorced in 2004 and had a single child together. Initially, the father was only ordered to pay $200 monthly to the mother, who was awarded primary residential responsibility for the child. 

Several years later, the mother learned that her ex's income had increased substantially, and he was earning about $92,000 annually, with a net monthly income of about $5,700. It was on these grounds that the court agreed to increase support payments to $930 monthly. 

Two years after that, the father requested modification of child support down to $350, holding that he was no longer employed by the same company that was previously used to calculate his support obligation. Further, he had moved out-of-state to live with his new wife, and his monthly income had fallen to about $2,500. He asked the court to also consider his expenses to return to the state periodically to exercise parenting time with his child. 

There was no question that his income had dropped. However, the court determined that the father had voluntarily changed his employment. As such, his motion was denied. He had to keep paying the $930 a month. 

This case illustrates why if you are responsible for paying child support, it is usually not a good idea to quit a job without careful consideration. There is a strong likelihood you will be asked by the court to justify your change of circumstance. 

Of course, there may be perfectly legitimate reasons for leaving a certain place of employment or even moving out-of-state. But if you do so expecting to take a hit on salary, be prepared to explain that to the family court judge. 

The court will sometimes grant requests for downward modification of child support payments when a parent can show a change in circumstances that is both unanticipated and unreasonable. For example, if a father loses his job unexpectedly and through no fault of his own and sends out dozens of resumes and is still unable to find work, this might qualify for circumstances under which support obligations can be reduced. However, upon his finding employment, another modification hearing could be requested. 

If you are considering requesting a child support modification in Brooklyn, call our offices at (718) 864-2011.

Additional Resources:

Schwalk v. ShwalkJanuary 2014, North Dakota Supreme Court

More Blog Entries:

New York Child Support Income Verification Can be Complex Matter, Jan. 25, 2014, Brooklyn Child Support Lawyer Blog


Saturday, January 25, 2014

New York City Child Support Income Verification Can be Complex Matter

There are few situations in which income verification for the purposes of New York City child support claims are a simple matter. 

While on the surface it wouldn't seem all that tough to determine, the fact is that anytime there is a request for modification of support, the court must carefully weigh a host of various factors. That includes one's salary, of course, but also costs for insurance, individual health and educational needs of each child, the receipt of public benefits, and other forms of outstanding debt. 

Making sure that all of these considerations are appropriately weighed - preferably in a light most favorable to your situation - requires the help of a family law attorney with proven experience. 

The case of Finch v. Finch, reviewed recently by the Mississippi Supreme Court, is a good example of the complexity of these situations. Although this is an out-of-state case and the specifics of the law can vary significantly from region to region, the general principles are applicable to parents in New York state. 

Court records indicate that in the course of the divorce proceedings, the husband worked as a boat captain in New York while the wife stayed at home as a mother. Ultimately, she was awarded $4,000 a month in alimony for 36 months, followed by $3,700 a month for 48 months and then $3,400 monthly indefinitely thereafter. 

A few months later, the ex-wife filed a petition for contempt, alleging her ex had failed to pay alimony, child support, obtain life insurance, maintain COBRA payments or disclose his address or phone number.

The ex-husband filed a counter petition, alleging the wife had withheld personal property from him and failed to pay the balance on a vehicle, as ordered by the divorce court. He said he hadn't obtained health insurance for her because she failed to undergo a physical examination. He also contended that she had fraudulently indicated that she continued to pay down the marital debts, although she had stopped paying a credit card that was in his name, causing him to incur numerous fees and a hit to his credit score. On this basis, he requested a reduction of alimony from $4,000 to $2,500. He also requested that the court declare his child emancipated because the child would not communicate with him, had legally removed his last name from his own, graduated from high school and was enrolled in college. 

During the subsequent hearing, it was revealed that the ex-wife had incurred debts in her former husband's name of which he was not aware. She also had been receiving about $730 in monthly Social Security payments, of which the court was not aware, despite requirements to submit such information. 

Based on all of this, the judge overseeing the case found a significant change in circumstances since the original decree was entered. He retroactively slashed the alimony payments in half, and also retroactively reduced the child support payments from $1,300 monthly to $900 monthly and relieved the father of any duty to pay his son's educational expenses. 

The ex-wife appealed this judgment, which was upheld by the appellate court, but later reversed by the state supreme court. While the court found clear and convincing evidence that the ex-wife had committed fraud upon the court, the primary issue in dispute was the ex-husband's salary. It apparently had fluctuated dramatically from year-to-year, and the court had failed to appropriately consider that in determining the new support obligation. Additionally, the high court found that the lower court's retroactive downward modification of child support was not appropriate. Downward modifications of child support can only be effective from the date the modification is ordered. 

Also with regard to the educational support expenses, the high court found that the lower court had erred in requiring the son to maintain a "C" average in college in order to continue to receive child support. Any modifications to child support should be considered in the light most favorable to the child, based on the parent's ability to pay, not the child's ability to prove worthy enough to receive support. 

If you are seeking a child support modification in New York City, call George M. Gilmer Esq. at (718) 864-2011.

Additional Resources:

Finch v. FinchJan. 16, 2014, Mississippi Supreme Court

More Blog Entries:

Brooklyn Child Custody Cases Must Afford Both Parties Due Process, Dec. 21, 2013, New York City Child Support Lawyer Blog

Archived Posts


© 2022 Gilmer Law Firm, PLLC. | Attorney Advertising
42 West Street, Suite 2/36c, Brooklyn, NY 11222
| Phone: 718-864-2011

Filing a Family Law Case | Family Law Overview | Family Court | Divorce | Cohabitation Agreements | Child Support Modifications | Maintenance | Child Custody | Paternity Petitions | Restraining Order | Family Law Mediation | Restraining Order Defense | Temporary Emergency Custody | OCFS Defense Attorney | Visitation | | Other Services | Bankruptcy | ACS Cases | Day Care Representation | Immigration | Uncontested Divorce

FacebookGoogle+TwitterLinked-In PersonalYouTubeBlog RSS

Attorney Web Design by