The New York courts use a statutory guidelines to determine what child support amount the non-custodial parent is obligated to pay. The guidelines as applicable to the Supreme Court in actions for separation and divorce are contained in Domestic Relations Law §240 and its counterpart for the Family Court is contained in Family Court Act §413. New York child support amounts are based partly on the non-custodial parent’s adjusted gross income and partly on how many children are on the order. The court determines the non-custodial parent’s gross income, and then deducts from that amount Medicare, social security tax, New York City or Yonkers tax, and other allowable deductions to establish the non-custodial parent’s adjusted gross income. An identical calculation is performed with respect to the income of the custodial parent. The court then multiplies the combined adjusted gross income by the standard guideline percentage for the number of children. These percentages are 17% for one child, 25% for two children, 29% for three children, 31% for four children, and at least 35% for five or more children. Subsequently, that child support amount is multiplied by the ratio of non-custodial parent’s adjusted gross income to the combined adjusted gross income.
The standard guideline is applied to most parental earnings up to $80,000 (minus certain local and social security tax amounts). This includes any worker’s compensation, disability payments, unemployment benefits, social security payments, and many other forms of income. Beyond $80,000, the courts determine whether or not to use the percentage guidelines, and may consider other factors in determining the full support amount.
The State of New York provides for interest on missed payments and adjudicated arrears at a rate of 9% per year, but only on arrearages reduced to a money judgment by the courts.
In order for the parent having primary physical residence of the child to seek upward modification of an existing child support obligation, a Family Court petition must present factual allegations representing a substantial change in circumstances. If such allegations are not presented, such petition fails to state a cause of action and is subject to dismissal. In meeting such burden, the party must establish the “’specific increases in the costs associated with the child’s basic necessities’ … ‘as well as the expenses associated with the child’s varied interests and school activities’ and cannot ‘[rely] on generalized claims of increases due to the child’s maturity or inflation’”. Cadwell v. Cadwell, 294 A.D.2d 434 (2d Dept. 2002); Gentry v. Littlewood, 269 A.D.2d 846 (4th Dept. 2000); Greenway v. Greenway, 262 A.D.2d 855 (3rd Dept. 1999).
Therefore, a petition should contain specific allegations addressing the change in the child’s needs and explaining how the parent with whom the child resides is unable to meet them.
In a recent decision, Johna M.S. v. Russell E.S., the Court of Appeals held that the Family Court lacks power to modify maintenance provisions contained in the parties’ separation agreement. The separation agreement that the wife and the husband both signed, explicitly stated that the wife is “completely disabled” and will be in need of maintenance “for the remainder of her life”. The agreement provided for current maintenance payments of $100.00 per week payable to the wife and recited that this being only a determination of her “present” need and his “present” economic circumstances. It further stated that the wife could if need be seek a “modification” of those sums in a “de novo” proceeding in a court of “appropriate jurisdiction”. A divided Court of Appeals held that the Family Court is not such an “appropriate” court and that in respect of spousal (as opposed to child) maintenance, family court lacks subject matter jurisdiction of a “modification”.
The Court pointed out that there was no risk that the wife would become a public charge. According to the Court of Appeals, the danger of a spouse becoming a public charge is the only circumstance in which, under Family Court Act § 463, the Family Court can modify a separation agreement when the matrimonial action has not been brought as of yet.
A key factor in Johna M.S. was that Family Court lacks “equity” jurisdiction. As Judge Smith points out in his dissent, the prior cases held that Family Court’s attempt to “modify” such a separation agreement amounts to a kind of “reformation or rescission”, which are equitable remedies: they seek to alter the parties’ agreement and there was no effort by the wife to do that here. On the contrary, the agreement itself contemplated modification, wholly negating the “equity” analogy. As a result, the disabled wife’s only choice is to either accept maintenance of $100.00 per week as permanent, or to sue in supreme court for a divorce or separation, where she will be able to seek a greater amount of maintenance.
Governor Paterson has recently signed a law which expands access to Civil Orders of Protection, allowing a person who is, or was, in an intimate relationship with an abuser – even though not related to that person – to seek an order of protection in Family Court. This substantially expands protections for victims, who for a variety of reasons may be unwilling to press charges in criminal court. Family Court Act §812 (1) (c) was amended to include in the list of persons who the court has jurisdiction to grant an order of protection to: (1) persons formerly married to one another, “regardless of whether they still reside in the same household” and (2) persons who are not related by consanguinity or affinity. Subdivision (e) was added to Family Court Act §812 to include in the list of persons who the court has jurisdiction over for the purpose of granting an order of protection, “persons who are or have been in an intimate relationship regardless of whether such persons have lived together at any time”. For purposes of subdivision (e), neither a casual acquaintance nor ordinary fraternization between two individuals in business or social contexts shall be deemed to constitute an “intimate relationship”. Factors the court may consider in determining whether a relationship is an “intimate relationship” include, but are not limited to: the nature or type of relationship, regardless of whether the relationship is sexual in nature; the frequency of interaction between the persons; and the duration of the relationship. Laws of 2008,, Ch 325, § 10, effective July 21, 2008). This significantly enlarges the number of situations where a party can obtain an order of protection from the Family Court.