Legal Question in Family Law in New York

The law:

1-b. (a) The court shall make its award for child support pursuant to

the provisions of this subdivision. The court may vary from the amount

of the basic child support obligation determined pursuant to paragraph

(c) of this subdivision only in accordance with paragraph (f) of this

subdivision.

(b) For purposes of this subdivision, the following definitions shall

be used:

(1) "Basic child support obligation" shall mean the sum derived by

adding the amounts determined by the application of subparagraphs two

and three of paragraph (c) of this subdivision except as increased

pursuant to subparagraphs four, five, six and seven of such paragraph.

(2) "Child support" shall mean a sum to be paid pursuant to court

order or decree by either or both parents or pursuant to a valid

agreement between the parties for care, maintenance and education of any

unemancipated child under the age of twenty-one years.

(3) "Child support percentage" shall mean:

(i) seventeen percent of the combined parental income for one child;

(ii) twenty-five percent of the combined parental income for two

children;

(iii) twenty-nine percent of the combined parental income for three

children;

(iv) thirty-one percent of the combined parental income for four

children; and

(v) no less than thirty-five percent of the combined parental income

for five or more children.

(4) "Combined parental income" shall mean the sum of the income of

both parents.

(5) "Income" shall mean, but shall not be limited to, the sum of the

amounts determined by the application of clauses (i), (ii), (iii), (iv),

(v) and (vi) of this subparagraph reduced by the amount determined by

the application of clause (vii) of this subparagraph:

(i) gross (total) income as should have been or should be reported in

the most recent federal income tax return. If an individual files

his/her federal income tax return as a married person filing jointly,

such person shall be required to prepare a form, sworn to under penalty

of law, disclosing his/her gross income individually;

(ii) to the extent not already included in gross income in clause (i)

of this subparagraph, investment income reduced by sums expended in

connection with such investment;

(iii) to the extent not already included in gross income in clauses

(i) and (ii) of this subparagraph, the amount of income or compensation

voluntarily deferred and income received, if any, from the following

sources:

(A) workers' compensation,

(B) disability benefits,

(C) unemployment insurance benefits,

(D) social security benefits,

(E) veterans benefits,

(F) pensions and retirement benefits,

(G) fellowships and stipends, and

(H) annuity payments;

(iv) at the discretion of the court, the court may attribute or impute

income from, such other resources as may be available to the parent,

including, but not limited to:

(A) non-income producing assets,

(B) meals, lodging, memberships, automobiles or other perquisites that

are provided as part of compensation for employment to the extent that

such perquisites constitute expenditures for personal use, or which

expenditures directly or indirecly confer personal economic benefits,

(C) fringe benefits provided as part of compensation for employment,

and

(D) money, goods, or services provided by relatives and friends;

(v) an amount imputed as income based upon the parent's former

resources or income, if the court determines that a parent has reduced

resources or income in order to reduce or avoid the parent's obligation

for child support;

(vi) to the extent not already included in gross income in clauses (i)

and (ii) of this subparagraph, the following self-employment deductions

attributable to self-employment carried on by the taxpayer:

(A) any depreciation deduction greater than depreciation calculated on

a straight-line basis for the purpose of determining business income or

investment credits, and

(B) entertainment and travel allowances deducted from business income

to the extent said allowances reduce personal expenditures;

(vii) the following shall be deducted from income prior to applying

the provisions of paragraph (c) of this subdivision:

(A) unreimbursed employee business expenses except to the extent said

expenses reduce personal expenditures,

(B) alimony or maintenance actually paid to a spouse not a party to

the instant action pursuant to court order or validly executed written

agreement,

(C) alimony or maintenance actually paid or to be paid to a spouse

that is a party to the instant action pursuant to an existing court

order or contained in the order to be entered by the court, or pursuant

to a validly executed written agreement, provided the order or agreement

provides for a specific adjustment, in accordance with this subdivision,

in the amount of child support payable upon the termination of alimony

or maintenance to such spouse,

(D) child support actually paid pursuant to court order or written

agreement on behalf of any child for whom the parent has a legal duty of

support and who is not subject to the instant action,

(E) public assistance,

(F) supplemental security income,

(G) New York city or Yonkers income or earnings taxes actually paid,

and

(H) federal insurance contributions act (FICA) taxes actually paid.

(6) "Self-support reserve" shall mean one hundred thirty-five percent

of the poverty income guidelines amount for a single person as reported

by the federal department of health and human services. For the calendar

year nineteen hundred eighty-nine, the self-support reserve shall be

eight thousand sixty-five dollars. On March first of each year, the

self-support reserve shall be revised to reflect the annual updating of

the poverty income guidelines as reported by the federal department of

health and human services for a single person household.

(c) The amount of the basic child support obligation shall be

determined in accordance with the provision of this paragraph:

(1) The court shall determine the combined parental income.

* (2) The court shall multiply the combined parental income up to

eighty thousand dollars by the appropriate child support percentage and

such amount shall be prorated in the same proportion as each parent's

income is to the combined parental income.

* NB Effective until January 31, 2010

* (2) The court shall multiply the combined parental income up to the

amount set forth in paragraph (b) of subdivision two of section one

hundred eleven-i of the social services law by the appropriate child

support percentage and such amount shall be prorated in the same

proportion as each parent's income is to the combined parental income.

* NB Effective January 31, 2010

(3) Where the combined parental income exceeds the dollar amount set

forth in subparagraph two of this paragraph, the court shall determine

the amount of child support for the amount of the combined parental

income in excess of such dollar amount through consideration of the

factors set forth in paragraph (f) of this subdivision and/or the child

support percentage.

(4) Where the custodial parent is working, or receiving elementary or

secondary education, or higher education or vocational training which

the court determines will lead to employment, and incurs child care

expenses as a result thereof, the court shall determine reasonable child

care expenses and such child care expenses, where incurred, shall be

prorated in the same proportion as each parent's income is to the

combined parental income. Each parent's pro rata share of the child care

expenses shall be separately stated and added to the sum of

subparagraphs two and three of this paragraph.

(5) The court shall determine the parties' obligation to provide

health insurance benefits pursuant to this section and to pay cash

medical support as provided under this subparagraph.

(i) "Cash medical support" means an amount ordered to be paid toward

the cost of health insurance provided by a public entity or by a parent

through an employer or organization, including such employers or

organizations which are self insured, or through other available health

insurance or health care coverage plans, and/or for other health care

expenses not covered by insurance.

(ii) Where health insurance benefits pursuant to subparagraph one and

clauses (i) and (ii) of subparagraph two of paragraph (c) of subdivision

one of this section are determined by the court to be available, the

cost of providing health insurance benefits shall be prorated between

the parties in the same proportion as each parent's income is to the

combined parental income. If the custodial parent is ordered to provide

such benefits, the non-custodial parent's pro rata share of such costs

shall be added to the basic support obligation. If the non-custodial

parent is ordered to provide such benefits, the custodial parent's pro

rata share of such costs shall be deducted from the basic support

obligation.

(iii) Where health insurance benefits pursuant to subparagraph one and

clauses (i) and (ii) of subparagraph two of paragraph (c) of subdivision

one of this section are determined by the court to be unavailable, if

the child or children are determined eligible for coverage under the

medical assistance program established pursuant to title eleven of

article five of the social services law, the court shall order the

non-custodial parent to pay cash medical support as follows:

(A) In the case of a child or children authorized for managed care

coverage under the medical assistance program, the lesser of the amount

that would be required as a family contribution under the state's child

health insurance plan pursuant to title one-A of article twenty-five of

the public health law for the child or children if they were in a

two-parent household with income equal to the combined income of the

non-custodial and custodial parents or the premium paid by the medical

assistance program on behalf of the child or children to the managed

care plan. The court shall separately state the non-custodial parent's

monthly obligation. The non-custodial parent's cash medical support

obligation under this clause shall not exceed five percent of his or her

gross income, or the difference between the non-custodial parent's

income and the self-support reserve, whichever is less.

(B) In the case of a child or children authorized for fee-for-service

coverage under the medical assistance program other than a child or

children described in item (A) of this clause, the court shall determine

the non-custodial parent's maximum annual cash medical support

obligation, which shall be equal to the lesser of the monthly amount

that would be required as a family contribution under the state's child

health insurance plan pursuant to title one-A of article twenty-five of

the public health law for the child or children if they were in a

two-parent household with income equal to the combined income of the

non-custodial and custodial parents times twelve months or the number of

months that the child or children are authorized for fee-for-service

coverage during any year. The court shall separately state in the order

the non-custodial parent's maximum annual cash medical support

obligation and, upon proof to the court that the non-custodial parent,

after notice of the amount due, has failed to pay the public entity for

incurred health care expenses, the court shall order the non-custodial

parent to pay such incurred health care expenses up to the maximum

annual cash medical support obligation. Such amounts shall be support

arrears/past due support and shall be subject to any remedies as

provided by law for the enforcement of support arrears/past due support.

The total annual amount that the non-custodial parent is ordered to pay

under this clause shall not exceed five percent of his or her gross

income or the difference between the non-custodial parent's income and

the self-support reserve, whichever is less.

(C) The court shall order cash medical support to be paid by the

non-custodial parent for health care expenses of the child or children

paid by the medical assistance program prior to the issuance of the

court's order. The amount of such support shall be calculated as

provided under item (A) or (B) of this clause, provided that the amount

that the non-custodial parent is ordered to pay under this item shall

not exceed five percent of his or her gross income or the difference

between the non-custodial parent's income and the self-support reserve,

whichever is less, for the year when the expense was incurred. Such

amounts shall be support arrears/past due support and shall be subject

to any remedies as provided by law for the enforcement of support

arrears/past due support.

(iv) Where health insurance benefits pursuant to subparagraph one and

clauses (i) and (ii) of subparagraph two of paragraph (c) of subdivision

one of this section are determined by the court to be unavailable, and

the child or children are determined eligible for coverage under the

state's child health insurance plan pursuant to title one-A of article

twenty-five of the public health law, the court shall prorate each

parent's share of the cost of the family contribution required under

such child health insurance plan in the same proportion as each parent's

income is to the combined parental income, and state the amount of the

non-custodial parent's share in the order. The total amount of cash

medical support that the non-custodial parent is ordered to pay under

this clause shall not exceed five percent of his or her gross income, or

the difference between the non-custodial parent's income and the

self-support reserve, whichever is less.

(v) In addition to the amounts ordered under clause (ii), (iii), or

(iv), the court shall pro rate each parent's share of reasonable health

care expenses not reimbursed or paid by insurance, the medical

assistance program established pursuant to title eleven of article five

of the social services law, or the state's child health insurance plan

pursuant to title one-A of article twenty-five of the public health law,

in the same proportion as each parent's income is to the combined

parental income, and state the non-custodial parent's share as a

percentage in the order. The non-custodial parent's pro rata share of

such health care expenses determined by the court to be due and owing

shall be support arrears/past due support and shall be subject to any

remedies provided by law for the enforcement of support arrears/past due

support. In addition, the court may direct that the non-custodial

parent's pro rata share of such health care expenses be paid in one sum

or in periodic sums, including direct payment to the health care

provider.

(vi) Upon proof by either party that cash medical support pursuant to

clause (ii), (iii), (iv), or (v) of this subparagraph would be unjust or

inappropriate pursuant to paragraph (f) of this subdivision, the court

shall:

(A) order the parties to pay cash medical support as the court finds

just and appropriate, considering the best interests of the child; and

(B) set forth in the order the factors it considered, the amount

calculated under this subparagraph, the reason or reasons the court did

not order such amount, and the basis for the amount awarded.

(6) Where the court determines that the custodial parent is seeking

work and incurs child care expenses as a result thereof, the court may

determine reasonable child care expenses and may apportion the same

between the custodial and non-custodial parent. The non-custodial

parent's share of such expenses shall be separately stated and paid in a

manner determined by the court.

(7) Where the court determines, having regard for the circumstances of

the case and of the respective parties and in the best interests of the

child, and as justice requires, that the present or future provision of

post-secondary, private, special, or enriched education for the child is

appropriate, the court may award educational expenses. The non-custodial

parent shall pay educational expenses, as awarded, in a manner

determined by the court, including direct payment to the educational

provider.

(d) Notwithstanding the provisions of paragraph (c) of this

subdivision, where the annual amount of the basic child support

obligation would reduce the non-custodial parent's income below the

poverty income guidelines amount for a single person as reported by the

federal department of health and human services, the basic child support

obligation shall be twenty-five dollars per month or the difference

between the non-custodial parent's income and the self-support reserve,

whichever is greater. Notwithstanding the provisions of paragraph (c) of

this subdivision, where the annual amount of the basic child support

obligation would reduce the non-custodial parent's income below the

self-support reserve but not below the poverty income guidelines amount

for a single person as reported by the federal department of health and

human services, the basic child support obligation shall be fifty

dollars per month or the difference between the non-custodial parent's

income and the self-support reserve, whichever is greater.

(e) Where a parent is or may be entitled to receive non-recurring

payments from extraordinary sources not otherwise considered as income

pursuant to this section, including but not limited to:

(1) Life insurance policies;

(2) Discharges of indebtedness;

(3) Recovery of bad debts and delinquency amounts;

(4) Gifts and inheritances; and

(5) Lottery winnings,

the court, in accordance with paragraphs (c), (d) and (f) of this

subdivision may allocate a proportion of the same to child support, and

such amount shall be paid in a manner determined by the court.

(f) The court shall calculate the basic child support obligation, and

the non-custodial parent's pro rata share of the basic child support

obligation. Unless the court finds that the non-custodial parents's

pro-rata share of the basic child support obligation is unjust or

inappropriate, which finding shall be based upon consideration of the

following factors:

(1) The financial resources of the custodial and non-custodial parent,

and those of the child;

(2) The physical and emotional health of the child and his/her special

needs and aptitudes;

(3) The standard of living the child would have enjoyed had the

marriage or household not been dissolved;

(4) The tax consequences to the parties;

(5) The non-monetary contributions that the parents will make toward

the care and well-being of the child;

(6) The educational needs of either parent;

(7) A determination that the gross income of one parent is

substantially less than the other parent's gross income;

(8) The needs of the children of the non-custodial parent for whom the

non-custodial parent is providing support who are not subject to the

instant action and whose support has not been deducted from income

pursuant to subclause (D) of clause (vii) of subparagraph five of

paragraph (b) of this subdivision, and the financial resources of any

person obligated to support such children, provided, however, that this

factor may apply only if the resources available to support such

children are less than the resources available to support the children

who are subject to the instant action;

(9) Provided that the child is not on public assistance (i)

extraordinary expenses incurred by the non-custodial parent in

exercising visitation, or (ii) expenses incurred by the non-custodial

parent in extended visitation provided that the custodial parent's

expenses are substantially reduced as a result thereof; and

(10) Any other factors the court determines are relevant in each case,

the court shall order the non-custodial parent to pay his or her pro

rata share of the basic child support obligation, and may order the

non-custodial parent to pay an amount pursuant to paragraph (e) of this

subdivision.

(g) Where the court finds that the non-custodial parent's pro rata

share of the basic child support obligation is unjust or inappropriate,

the court shall order the non-custodial parent to pay such amount of

child support as the court finds just and appropriate, and the court

shall set forth, in a written order, the factors it considered; the

amount of each party's pro rata share of the basic child support

obligation; and the reasons that the court did not order the basic child

support obligation. Such written order may not be waived by either

party or counsel; provided, however, and notwithstanding any other

provision of law, the court shall not find that the non-custodial

parent's pro rata share of such obligation is unjust or inappropriate on

the basis that such share exceeds the portion of a public assistance

grant which is attributable to a child or children. In no instance shall

the court order child support below twenty-five dollars per month. Where

the non-custodial parent's income is less than or equal to the poverty

income guidelines amount for a single person as reported by the federal

department of health and human services, unpaid child support arrears in

excess of five hundred dollars shall not accrue.

(h) A validly executed agreement or stipulation voluntarily entered

into between the parties after the effective date of this subdivision

presented to the court for incorporation in an order or judgment shall

include a provision stating that the parties have been advised of the

provisions of this subdivision, and that the basic child support

obligation provided for therein would presumptively result in the

correct amount of child support to be awarded. In the event that such

agreement or stipulation deviates from the basic child support

obligation, the agreement or stipulation must specify the amount that

such basic child support obligation would have been and the reason or

reasons that such agreement or stipulation does not provide for payment

of that amount. Such provision may not be waived by either party or

counsel. Nothing contained in this subdivision shall be construed to

alter the rights of the parties to voluntarily enter into validly

executed agreements or stipulations which deviate from the basic child

support obligation provided such agreements or stipulations comply with

the provisions of this paragraph. The court shall, however, retain

discretion with respect to child support pursuant to this section. Any

court order or judgment incorporating a validly executed agreement or

stipulation which deviates from the basic child support obligation shall

set forth the court's reasons for such deviation.

(i) Where either or both parties are unrepresented, the court shall

not enter an order or judgment other than a temporary order pursuant to

section two hundred thirty-seven of this article, that includes a

provision for child support unless the unrepresented party or parties

have received a copy of the child support standards chart promulgated by

the commissioner of social services pursuant to subdivision two of

section one hundred eleven-i of the social services law. Where either

party is in receipt of child support enforcement services through the

local social services district, the local social services district child

support enforcement unit shall advise such party of the amount derived

from application of the child support percentage and that such amount

serves as a starting point for the determination of the child support

award, and shall provide such party with a copy of the child support

standards chart. In no instance shall the court approve any voluntary

support agreement or compromise that includes an amount for child

support less than twenty-five dollars per month.

(j) In addition to financial disclosure required in section two

hundred thirty-six of this article, the court may require that the

income and/or expenses of either party be verified with documentation

including, but not limited to, past and present income tax returns,

employer statements, pay stubs, corporate, business, or partnership

books and records, corporate and business tax returns, and receipts for

expenses or such other means of verification as the court determines

appropriate. Nothing herein shall affect any party's right to pursue

discovery pursuant to this chapter, the civil practice law and rules, or

the family court act.

(k) When a party has defaulted and/or the court is otherwise presented

with insufficient evidence to determine gross income, the court shall

order child support based upon the needs or standard of living of the

child, whichever is greater. Such order may be retroactively modified

upward, without a showing of change in circumstances.

(l) In any action or proceeding for modification of an order of child

support existing prior to the effective date of this paragraph, brought

pursuant to this article, the child support standards set forth in this

subdivision shall not constitute a change of circumstances warranting

modification of such support order; provided, however, that (1) where

the circumstances warrant modification of such order, or (2) where any

party objects to an adjusted child support order made or proposed at the

direction of the support collection unit pursuant to section one hundred

eleven-h or one hundred eleven-n of the social services law, and the

court is reviewing the current order of child support, such standards

shall be applied by the court in its determination with regard to the

request for modification, or disposition of an objection to an adjusted

child support order made or proposed by a support collection unit. In

applying such standards, when the order to be modified incorporates by

reference or merges with a validly executed separation agreement or

stipulation of settlement, the court may consider, in addition to the

factors set forth in paragraph (f) of this subdivision, the provisions

of such agreement or stipulation concerning property distribution,

distributive award and/or maintenance in determining whether the amount

calculated by using the standards would be unjust or inappropriate.

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It's common to have support continuing through college.The order setting the support obligation should specify an end date.