In Marcia T. v. Raymond W., 2009 NY Slip Op 51883U (Albany County 2009), a father who had filed for Chapter 13 bankruptcy argued that this bankruptcy filing should stay the confirmation of a finding that he willfully violated a prior support order.  His argument relies on the automatic stay provisions of the bankruptcy code which provide that the filing of a bankruptcy petition operates as a stay for actions to recover a claim against the debtor that arose prior to the commencement of the case.   

The Family Court agreed with the father and held that his filing under Chapter 13 of the U.S. Bankruptcy Code stays all proceedings to collect prior claims against the debtor and his property.  Because the debtor must make payments to creditors from his post-filing earnings, those earnings are the property of the Chapter 13 bankruptcy “estate”. 

 However, although the Court held that it was precluded allowing a recovery of arrears while the Chapter 13 bankruptcy plan was in effect, it was not prohibited from confirming the willful violation finding and simply staying enforcement until the Chapter 13 bankruptcy plan was completed. 

The Court held that if the payment of arrears to the mother was not satisfied by the time the bankruptcy plan was completed, the mother could restore the violation to the Family Court’s calendar to seek the payment of arrears owed to her.

In a case of first impression, the Fourth Department Appellate Division determined that military allowances for food and housing constitute “income” for the purpose of calculating a parent’s child support obligation.  In Massey v. Evans, 2009 NY Slip Op 06933, (4^th Dep’t 2009), the mother commenced a support proceeding.  The parties stipulated that the father earned base pay from active military duty in the amount of $22,186 per year.  The parties further stipulated that, in addition to base pay, the father receives BAH in the amount of $10,776 per year and BAS in the amount of $3,533 per year.  BAH is a monthly allowance paid by the military to members who reside off base in government-supplied housing.  The amount of BAH varies according to the member’s pay grade, geographic location and dependency status.  BAS is a monthly allowance paid to active duty military members to subsidize the cost of meals purchased for his or her benefit on or off base.  The amount of BAS allowance is based upon average food costs as determined by the federal government.

 The Support Magistrate determined that the BAH and BAS allowances were includable in the father’s income to determine his child support obligation, reasoning that the allowances are additional resources available to the father and intended to offset the cost of his meals and lodging.  The father filed written objections to the Support Magistrate’s order, arguing that BAH and BAS are excludable from income for federal tax purposes.  The Family Court denied the father’s objections and affirmed the order of the Support Magistrate.  On appeal, the Appellate Division affirms the finding of the Family Court.

 Family Court Act §413(1)(b)(5) states that a parent’s income includes, but is not limited to, gross income as report on the most recent federal income tax return and, to the extent not reflected in that amount, income received from other sources, such as workers’ compensation, disability benefits, unemployment insurance benefits and veterans benefits.  Courts are also given considerable discretion to attribute or impute income from such other resources as may be available to the parent, including “meals, lodging, memberships, automobiles or other perquisites that are provided as part of compensation for employment to the extent that such perquisites constitutes expenditures for personal use…”  The Appellate Division determined that the father’s allowances received from the military fall with the statute’s broad definition of income.  Parental income is not limited only to taxable income, but includes such allowances as the father receives from his military duty.

In Quinn v. Quinn, 61 A.D.3d 1067 (3d Dep’t 2009), the Supreme Court permitted the father, as noncustodial parent in a matrimonial action, to take all dependency exemptions for the parties two children in future tax years.  The Supreme Court reasoned that the father is the sole source of income for the children and that allowing him to take the full benefit of the tax exemptions would “maximize the total available income to implement the court’s decision” with regard to child support. 

 The Appellate Division agreed with the Supreme Court’s reasoning, recognizing that “where a noncustodial parent meets all or a substantial part of a child’s financial needs, a court may determine that the noncustodial parent is entitled to declare the child as a dependent”.  However, because the father’s income exceeds a tax threshold, he would be unable to declare the dependency exemptions for the 2008 and 2009 tax years.   Only in the 2010 tax year and thereon could the father realize the benefits of the dependency exemptions for the parties’ children.

 The Appellate Division determined that there is no reason to deprive the parties of the opportunity to realize any tax benefits for the 2008 and 2009 tax years and revised the parties’ Judgment of Divorce to permit the wife to claim the parties’ children as dependents for 2008 and 2009.

 In New York State, child support includes both “basic” support and “add on” support.  Basic support is the percentage calculated for support based on a parent’s income.  Add on support is additional support for health insurance and unreimbursed medical expenses, some educational costs, and daycare. 

For add on support, each parent must contribute his or her pro rata share of such expenses.  For example, if each parent earns $50,000, each would pay 50% of the add on costs.  If one parent earns $20,000 and the other earns $80,000 they would pay 20% and 80%, respectively, of the add on costs. 

Parents can deviate from their pro rata shares of the add on child support, but their agreement or the court order must specify their reasons for the deviation.  The parties may also agree to include additional “add on” support categories, such as the cost of camps and extracurricular activities for their children. 

Domestic Relations Law §240 (1)(d) provides that the cost of the health care insurance premium must be paid by the parties in accordance with the pro rata shares.  Domestic Relations Law §240 (1-b)(c)(5) provides that reasonable health care expenses that are not covered by insurance, i.e., unreimbursed medical expenses, are allocated in the same proportion as each parent’s income is to the combined parental income.  In determining which parent should carry the insurance for the children, the Court normally investigates who is offered insurance by their employer, the comprehensiveness of the insurance offered, and the cost of such premiums.

Domestic Relations Law §240 (1-b)(c)(4) and Domestic Relations Law §240 (1-b)(c)(6) provide that a custodial parent who is working, is looking for work, or is in school or training which will lead to employment and incurs reasonable day care expenses, such expenses must be paid by the parties in accordance with the pro rata shares.

For parties who agree that their children will attend private school, or whose children have been enrolled in private school prior to the commencement of a divorce action, they may be obligated to pay these educational expenses in accordance with their pro rata shares.

In New York State, parents have a duty to financially support their children and can be directed by the Supreme Court or Family Court to pay child support in a fair and reasonable sum, if found to possess sufficient means or to have the ability to earn such means.  The parents’ obligation to financially support a child continues until the child’s 21^st birthday, unless the child emancipates earlier.  A child’s emancipation may occur under the following six scenarios:

             1.         The child marries, regardless of whether the marriage is later determined to be void or voidable or terminates by death, divorce, annulment, dissolution or in any other manner;

             2.         The child enters the armed forces of the United States or of any other country or political entity;

             3.         The child dies;

             4.         The child ceases to permanently reside with either parent. However, a child is not emancipated if he or she resides away from both parents’ homes to attend college, reside at a boarding school or camp, or in conjunction with summer employment between college semesters while the child remains a full-time student;

             5.         The child attains the age of 18 years and becomes employed on a full-time basis.  However, the child is not emancipated if he or she obtains full-time summer employment while attending college as a full-time student; and

             6.         The child constructively emancipates by unreasonably refusing all contact and visitation with the non-custodial parent who was paying child support on his or her behalf, thereby forfeiting his or her right to such financial support.

 A parent’s duty to support a child under 21 years old may resume even if the child was previously deemed emancipated.  For instance, if a child under 21 years old had previously resided away from both parents’ homes but later returned to reside with one parent, that parent has the right to petition for and receive child support in a fair and reasonable sum from the other parent, even though the child was previously emancipated.  Similarly, if a child between the ages of 18 and 21 years was working full time but later decided to instead attend college on a full-time basis, the parents would be responsible for his or her financial support until he or she turned 21 years old.

Parents may agree to extend their duty of support for their children past the child’s 21^st birthday.  For instance, most children attending college do not graduate until they have reached the age of 22 or 23 years old, or even older.  In the interim, they still require financial assistance to pay for shelter, food and clothing.  Parents have the ability to agree that child support obligations continue until the child graduates from college, graduate school or until some other event or time period.

If you are considering travel, beware.  An application for a passport can be denied if you owe child support.

The U.S. Department of State issued rules requiring the denial of a passport application if the applicant is in arrears on his or her child support obligation in the amount of $2,500 or more.  If the applicant remedies the issue and satisfies the child support arrears, he or she must notify the Department of Health and Human Services. 

The Department of State advises applicants that it will take approximately 5 to 10 business days from the date the arrears are satisfied for the applicant’s name to be removed from the list of persons to be denied a passport.

Everyone understands that the economy is lousy and the unemployment rate has skyrocketed.  But, if you lose your job or if your child’s other parent loses their job, can child support be modified?

In a case where the burden of proof was “substantial and unanticipated change of circumstances”, the Appellate Court in the Second Department has said that the loss of a job is not sufficient to modify child support. 

In Awaad v. Awaad, 62 A.D.3d 695 (2d Dep’t 2009), a father filed a petition in Family Court seeking a downward modification of his child support obligation due to loss of employment.  Family Court granted the father’s application; however, the Appellate Division reversed on appeal, finding that the father’s loss of employment is not enough to pass the threshold of demonstrating a substantial and unanticipated change of circumstances such that his support obligation should be modified.  Rather, the father must have provided proof to the Family Court of his good faith efforts to obtain new employment commensurate with his qualifications and experience to warrant a modification of his child support obligation. 

If you have a written Separation or Opting Out Agreement, you have the same burden of proof that the Court addressed in Awaad.  If you have a court order for support that is not based on an Agreement, you have a different burden of proof that can be much easier to meet.

The Uniform Interstate Family Support Act (UIFSA) has been adopted by all fifty states to ensure recognition of prior support orders after children are moved by their parents to a new state. Prior to the adoption of UIFSA, parents were able to have support orders created from multiple jurisdictions and shop for the best support results among state statutes. The One Case, One Order concept ensures that when a support order is issued by State A, State B is only able to modify or enforce that order where appropriate, not issue an entirely new order.

For enforcement purposes, the process of requesting the involvement of a new state to enforce a prior support order is called registration. Registration of an out-of-state order in New York is accomplished by filing necessary official forms with the local family court. Upon submission of the paperwork, a Notice of Registration is sent to the other parent, who has 20 days to file a petition with the New York court to contest the registration of the support order. If no petition is filed by the other parent, the registration of the support order in New York is confirmed and an account is established through the Support Collection Enforcement Unit, who administratively enforces the order. If a petition is filed to contest the registration of the support order, the matter is scheduled for a hearing and determination on the issue of whether the registration should be vacated.

A support order can only be modified by a court that possesses continuing exclusive jurisdiction over the order. Only one state can possess continuing exclusive jurisdiction at one time. If either of the parties or the children affected by the support order continue to reside in the state that issued the order, that state possesses continuing exclusive jurisdiction and only that state can modify the order. However, the parties can agree in writing to have the issue of modification determined by a state other than that which has continuing exclusive jurisdiction over the support order. If no party or child affected by the support order resides in the state that originally issued the support order, the order must be registered in the state where the person responding to the petition to modify the order, the Respondent, resides, not where the person filing the petition, the Petitioner, resides.

To modify a support order, the new court cannot modify any aspect of a child support order that cannot be modified under the law of the state that issued the order. For example, the new state cannot modify the age of emancipation for the children affected by the support order. For example, in New York State, the age of emancipation is normally 21 years old, unless other circumstances exist. If New York assumes jurisdiction over a support order of another state where the age of emancipation is normally 18 years old, the order cannot be extended to 21 years old. Once an order is modified, it becomes the new controlling order in the case, and the state that issued the order now has continuing exclusive jurisdiction.