I have spent most of my career in New York’s Family Court system. I’ve had many people come into my office for consultations who are cynical “veterans” of the system, and others who tell me that they have heard “horror stories.” This series will describe the reasons why the Family Court system generates such visceral reactions and the role that attorneys can play to generate better results.
One area that causes serious resentment in Family Court is child support. As one wise attorney said, “In the worst-case scenario, they feel like they’re getting robbed. In the best-case scenario, they feel like they’re paying taxes.” Why does paying child support feel so different from just buying things for your children?
The answer lies in the structure of child support payments. Parents are sued for it. Getting served with papers — papers filed by the other parent of your child (the petitioner) against you (the respondent) — creates an atmosphere where it is easy to forget that the money is for your children’s basic needs.
Another thing to consider is that the system actually discourages people from waiting to file for support. Most matrimonial attorneys tell people to file as soon as possible because child support orders are retroactive to the date of filing — meaning that if you try to work something out without going to court, can’t come to an agreement, and then file, the recipient spouse can’t recover any money from before the date that he or she filed.
The child support system is rough on people paying it at all stages. The first calculation is for “basic” child support, which is supposed to be for basic needs like food, clothing, and shelter. Basic child support is calculated based upon a percentage of combined parental income up to a “cap” that is periodically adjusted (as of 2020, $154,000.00).
Anything above the “cap” is based upon the needs of the children. The amount in basic child support to be paid is based on a percentage of the paying spouse’s income. 17% for one child, 25% for two children, 29% for three children, 31% for four children, and 35% and above for five or more children. The only taxes that are taken out are FICA taxes (Social Security and Medicare) and New York City taxes. Therefore, when they calculate these percentages, it’s before, not after, you pay federal and state income taxes.
What happens if the court finds that the non-custodial parent didn’t pay, but really couldn’t? The court still will issue a money judgment, which will ruin the non-custodial parent’s credit, and can lead to wage garnishments, liens on real estate, etc. This is in addition to possible administrative remedies, which the state can do without a court order if the non-custodial parent falls behind on child support. Those remedies include suspensions of driver licenses, suspensions of recreational licenses, and revocations of passports. They can even ask for professional licenses to be suspended. Attorneys have had their law licenses suspended for falling behind on their child support.
Policy changes are sorely needed. Courts should have the freedom to forego issuing money judgments when people are unable to pay their child support through no fault of their own.
One way to avoid the courts is to work with a mediator who is trained in non-adversarial techniques for reaching agreements. By doing so, each couple can customize their agreements to fit with the situation “on the ground,” like an income that varies with the seasons. If you would like to know more about mediating child support agreements, contact me. Stay tuned for more posts on “just the facts,” looking at other essential components of family court and law.
Joseph H. Nivin, Esq.
The Law Offices of Joseph H. Nivin, P.C.
118-35 Queens Boulevard, Suite 1220A
Forest Hills, NY 11375
The Chanin Building
122 E. 42nd Street, Suite 2100
New York, NY 10168