Child and Spousal Support (F Petitions)
and Uniform Interstate Support (U Petitions
Child and spousal support is one of the most common reasons that people go to the Family Court. The law requires that both parents contribute to the support of their children according to the financial ability of each parent.
Although support seems like a simple concept the reality is that in many instances a support case can become quite complex and the assistance of an experienced Family Court attorney will be very helpful to getting the results you deserve.
The only major difference between an F petition
and a U petition
is that a U petition is filed by an out-of-state resident against a non-custodial parent living in New York State or by a custodial parent living in New York State filing a petition against a non-custodial parent residing outside of New York State. In a U petition, the petitioner does not need to appear in Court. Instead, an attorney for the County will be present to represent the Petitioner's interests.
What is the difference between spousal support and child support? Can I get both? Do I have to pay both?
Child support is money you are required to pay for the support of your children. Spousal support is money you must pay to support your spouse.
It is possible to go to family court seeking both spousal support and child support.How do I qualify for Spousal Support?
You must be legally married to the person from whom you are seeking support. Typically, you must be considered the “non-monied” spouse (the spouse with less income) in order to ask for spousal support.
Whether or not the Court will grant you spousal support and how much they will grant you is based upon a complex set of many factors. In order to find out more about spousal support you should speak with an experienced Family Law attorney.
How do I qualify for Child Support?
You must be the primary custodial parent. This means that the children are living with you more than 50% of the time. If that is the case, the other parent legally responsible for your child must pay you child support.
If you are seeking child support from the father of the child you must first establish that the individual is in fact the father of the child. For more information on establishing paternity click here
How much child support am I entitled to?
In general, if the combined income of both parents is under $130,000 the Court will follow a very simple formula known as the Child Support Standards Act (CSSA). Child support will be calculated as a percentage of gross income minus social security tax, Medicare tax and local income taxes (other deductions are sometimes possible as well). The applicable percentages are as follows:
• 1 child: 17%
• 2 children: 25%
• 3 children: 29%
• 4 children: 31%
• 5 or more children: no less than 35%
If the parents' combined income is over $130,000 the calculation is based on many other factors and becomes much more complex. Furthermore, if the parents have a very low income, additional deviations may be permitted as well.
The above percentages are the presumptive amount of child support. An experienced Family law attorney may be able to argue that you are entitled to a “deviation from the standard” thereby possibly entitling you to receive more money or pay less money. Your ability to receive a deviation will depend upon your individual circumstances.
In addition to the above percentages, the non-custodial parent may also be required to pay a pro-rata share (based upon the parties income) of unreimbursed medical expenses and/or health insurance premiums as well as a pro-rata share of child care expenses if the custodial parent is gainfully employed.What happens if I can no longer afford the Order of Support? What about if I need more child support?
Things happen. People lose their jobs, get injured, are forced to move. The Family Court provides for such a situation. If you have experienced an “unanticipated change of circumstances” since the entry of the order of support you will be entitled to a modification of the child support order.
It is important to keep in mind that the change of circumstances must be unanticipated. This means that simply having less money available to you because the prices of goods and services have gone up is not sufficient for a change of circumstances because inflation is clearly something that was anticipated.
An example of unanticipated change of circumstances would be involuntarily losing your job, (you cannot quit just to claim a change of circumstances), getting injured or ill to the point you must miss work, extraordinary additional unexpected expenses, etc…
The party seeking the modification must first demonstrate that there has in fact been an “unanticipated change of circumstances.” Once that has been established, the Court will recalculate the order of support based upon the non-custodial parent's then existing income.
It is important to have an experienced Family Law attorney who will be able to review your financial situation and determine what, if any, your change of circumstances is, and the proper strategy to maximize the modification as a result of this change of circumstances.How long must I pay child support for?
You are required to pay child support until your child has become “emancipated.” Emancipation in New York State is defined as:
• Attaining the age of 21.
• Full time employment while no longer attending school.
• Enlisting in the military.
• Refusal to follow reasonable rules set out by the parent such that the child leaves the home to avoid parental control.
• Some other factor as may be agreed to between the parties.
Although it sounds silly, simply because your child is emancipated does not mean you can stop paying child support. You must still file a petition with the Family Court asking that the Order of Child Support be terminated.Is the money going to be automatically taken from my salary?
Unless the party entitled to receive the child support agrees that you can pay voluntarily, you must pay child support through the New York State Support Collection Unit (SCU). If you are a W-2 wage earner they will send an income execution to your employer requiring them to withhold the proper amount of child support from your salary each week and remit it directly to SCU.What happens if I refuse to pay? What happens if the non-custodial parent refuses to pay me?
If you fall behind on child support payments or any other additional support the Court ordered you to pay, the parent entitled to receive the support may file a Violation Petition against you asking the Family Court to hold you in contempt of court for refusing to obey the order of child support.
The Court will hold a hearing to determine how much you have failed to pay in child support and whether or not the failure to pay was “willful.” Once it is proven that there was a valid order of support and you did not make timely payments your violation will be presumed to be willful. The burden of proof will be on your to establish that you were unable to make the required child support payments. It is important to note that quitting your job and/or being fired for cause would still be considered a willful violation as your inability to pay would be based upon your own actions.
If the Court determines that your violation was non-willful (i.e. you simply did not have the means to pay the order) the Court may do any of the following:
• Enter a money judgment against you for the total amount owed.
• Issue an income deduction order and submit to your employer.
• Require the posting of a bond to ensure future payments.
• Suspension of your drivers' license.
• Suspension of your recreational and sporting licenses (i.e. hunting license, fishing license, etc…).
However if the Court determines that the violation was willful, meaning that you had the means and ability to pay the order the Court will enter a finding of willfulness and may proceed as follows:
• Enter a money judgment against you for the total amount owed with 9% interest from the date each payment was due.
• Place you on Probation.
• Require your participation in job training or educational programs.
• Sentence you to up to 6 months in jail.
It is essential that you have an aggressive experienced Family Law attorney to protect your rights at a violation hearing. Navigating a violation hearing can be very tricky and many parents with valid claims for violations see their cases dismissed just as many non-custodial parents are found to have willfully violated the Order of Support when they may have had a valid excuse.
An experienced attorney from Simon & Milner will help to ensure that you get the results you deserve at a violation of an order of support hearing.