Lawyers.com details that: 

According to the latest comprehensive child support numbers from the US Census Bureau, only 41.2 percent of custodial parents receive the full amount of support owed them by their ex-spouses.

This astounding statistic means that more than half of the parents awarded child support will either not be paid any child support or will be shortchanged. While some can point to a weakened economy and a high unemployment rate as a possible explanation for the high default rate, the problem of deadbeat parents has been ever present.

Collecting support from the self employed has always been problematic. Unlike a W-2 employee, an income execution or wage garnishment is ineffective against someone who is self-employed. Likewise, collection of support is difficult from someone working “under the table” for cash.

Then, there are the professional “deadbeats,” who, as detailed in the Lawyers.com article, simply move from job to job simply to avoid making child support payments. By the time the parent, who is to receive child support, tracks down the deadbeat parent and implements enforcement, the deadbeat either quits or moves on to another job.

In New York, when a parent is late or fails to pay court ordered support payments, the following remedies are available to collect support:

•  Credit reporting: Child Support Enforcement will report the failure to pay child support payment to major credit reporting agencies.
•  Passport denial: Anytime a person owes more than $2,500 in back child support, the U.S. State Department will not issue or renew a passport until all past-due support payments (also called “arrears”) are paid.

• License  Suspension: Child Support Enforcementcan request that any permanent, state-issued license be suspended or withheld to collect back child support. This could result in the suspension of both professional, and driver’s licenses.

•  Income tax intercepts: The Internal Revenue Service and the State Department of Taxation can also intercept tax refunds to pay back child support

•  Imprisonment: The failure to pay child support is a contempt of court, and the deadbeat parent can be imprisoned until the contempt is purged. Support would have to be paid to purge the contempt.

The college application process can be an extremely stressful experience in a young person's life; adding to the child’s stress about deciding where to apply and which school to attend is the child's awareness that his or her choice of a college will provide yet another opportunity for parental conflict over who is going to pay for college.  In New York, divorced parents oft seek to apply the "SUNY cap."

 The SUNY cap is one of the devises employed by New York divorce attorneys to address the issue how to pay for children’s college education.      

 It is common in New York for divorcing parents to agree in their settlement agreements how college expenses will be paid.  Sometimes the parties agree to split the actual costs of pursuing a higher education; other times one parent solely agrees to bear the burden.   More often, the parties agree to limit their obligation to pay for their children’s college education to a percentage of the cost of a State University of New York (SUNY) school.   This limitation is referred to as a “SUNY Cap.”   

 An agreement to apply the SUNY cap and to limit a parent’s contribution to a child’s college education will be enforced regardless of whether the child attends a public or private educational institution. 

In the absence of an agreement, the Domestic Relations Law empowers a court to order a parent to pay for college.  Among the factors that Courts  consider in determining whether to award college expenses are the educational background of the parents, their financial ability to provide the necessary funds, the child's academic ability and endeavors, and the type of college that would be most suitable for the child.

More problematic is when, in the absence of an agreement, college expenses will be paid.   In the recent case, Pamela T. v Marc B., the parties did not have an agreement as to how they would pay for the children’s college education, the court refused to apply a SUNY cap. 

In Pamela T.  v. Marc B., the Court announced that:

There is no basis to impose the SUNY cap, to the extent that it should be imposed at all, where the party seeking to invoke the cap has the financial ability to contribute towards the actual amount of his or her child's college expenses.

The Court noted that even if a SUNY were to be imposed, it would not be determinative as to what school the child would attend.    As the Court noted:

Contrary to what proponents of a wide and liberal application of the SUNY cap might urge, the SUNY system should not be the assumed destination of the children of divorce.

In selecting the college, a litany of factors should be considered, including the educational curriculum, the make-up of the student body, and active alumni networks. “Other considerations might include such things as the size of the school, the type of campus, the architectural distinction of the buildings, the nature of its athletic programs, the services provided to students with either physical or learning disabilities, and the type of city or town in which the school is located. “

In short, the failure to address the how the costs of college will be handled in a settlement agreement only leaves the door open to litigation when the children are college bound.   

1.   a new procedures for setting awards of temporary maintenance while a divorce is pending;

2.  a procedure for reviewing and modifying child support awards; and

3.    a law making it easier for the less monied spouses to receive an award of attorneys’ fees during the divorce.  

Here are the highlights of the new laws:

• No Fault Divorce

            The law creates a new cause of action for divorce. Couples can now seek a divorce when the marriage has irretrievably broken down for a period of six months preceding the commencement of the divorce action.    

• Temporary Maintenance 

The new law provides that maintenance is to be awarded during the divorce when one parties’ income is less than 2/3’s of the other spouse’s income.  

The amount of maintenance is to be the lesser of a) 30% of the payor’s income minus 20% of the non-payor’s income or b) 40% of the combined income minus the non payor’s income.  (New York Temporary Maintenance Calculator)

• Counsel Fees

  The  counsel fee bill creates rebuttable  presumption that the “monied”  spouse should pay to the “non-monied” spouse interim counsel fees in all divorce or family law case.  The purpose of the law is to
”even the playing field.” 

•  Modification of Child Support

The Family Court Act ("FCA") was amended to allow modification of an order of child support due to "substantial change in circumstances".

In addition, unless parties specifically opt out, the court can modify a post October 13, 2010 order where three years have passed since the last order was entered, modified, or adjusted. Substantial change in circumstances is generally defined in a change in either party's gross income by 15% or more. A reduction in income shall not be considered as a ground for modification unless it was involuntary and the party has made diligent attempts to secure employment.

In the case H.M. v. E.T, the Court ruled that the when the

 partner of a child’s biological mother consciously chooses, together with the biological mother, to bring that child into the world through [artificial insemination,] and where the child is conceived in reliance upon the partner’s implied promise to support the child, a cause of action for child support . . .has been sufficiently alleged . . .

As Linda McClain, a Boston University law professor who specializes in family law, noted in the WSJ Law Blog, the ruling “is very much in keeping with the notion that it’s better for children to have two parents, than one, and why deprive a child of a source of parental funds?”

This decision also serves as reminder that marriage is more than a celebratory party; it is a relationship that creates legal obligations and responsibilities.

 In New York same sex couples can now divorce and be ordered to pay child support; they just can’t wed.   

The typical divorce settlement agreement provides that child support will terminate on the happening of an “emancipation event” which is defined by parties’ settlement agreement, but generally includes the child’s death, marriage or entry into the military.

Many agreements also provide that a child should be deemed emancipated if the child enters the workforce on a full time employment. However, the Appellate Division, First Department ruled last week that a child’s full time employment alone does not constitute an emancipation event; the child must also be fully self supporting and economically independent.

In Thomas B.v. Lydia D, the parent’s agreement provided for the termination of support, without any consideration of the son’s economic independence. Support terminated only if the child was employed on a full time basis.

The Court ruled that this provision was contrary to law and public policy.

The parties cannot contract away the duty of child support. "Despite the fact that a separation agreement is entitled to the solemnity and obligation of a contract, when children's rights are involved the contract yields to the welfare of the children.“ The duty of a parent to support his or her child "shall not be eliminated or diminished by the terms of a separation agreement" nor can it be abrogated by contract.

Whether a child is economically independent requires a fact specific inquiry. Even if a child is working but relies on a parent for significant economic support such as paying for utilities, food, car insurance, medical insurance or clothing, the child cannot be considered economically independent, and thus is not emancipated This is true even where the child is residing with neither of the parties, so long as the child is still dependent on one of the parties for a significant portion of his or her support.
 

The article, in which I am extensively quoted, addresses many of the issues to be considered when contemplating divorce. The complexity of the issues is compounded exponentially because of the sheer size of Jon and Kate’s family.

Indeed, the child support calculation is simply “off the charts” as the child support guidelines do not even contemplate families of this size. Moreover, the overnight “celebrity” may skew the child support calculation which will be based on the couple’s reality television income, which I am sure, is substantially higher than their pre-television earnings.
 

In short, the divorce court should only consider the assets and liabilities existing at the time of the divorce.

The Court in Mahoney-Buntzman v. Buntzman declared that:

Courts should not second-guess the economic decisions made during the course of a marriage, but rather should equitably distribute the assets and obligations remaining once the relationship is at an end.

The Court recognized that if a trial court were to scrutinize every transaction during the marriage, the result would be a cumbersome review by a court, forced to review the reasonableness of every expenditure, measuring the benefit to each of the parties. Instead, the Court declared that “The parties’ choice of how to spend funds during the course of the marriage should ordinarily be respected.”

This same conclusion was reached in Johnson v. Chapin, decided the same day.

In reaching this conclusion, the Court noted that:

There may be circumstances where equity requires a credit to one spouse for marital property used to pay off the separate debt of one spouse or add to the value of one spouse's separate property . . .Further, to the extent that expenditures are truly excessive, the ability of one party to claim that the other has accomplished a "wasteful dissipation of assets" (DRL 236 [B][5][d][11]) by his or her expenditures provides protection.

In other words, questionable or wasteful expenditures may be examined, child support and maintenance payments may not.

The answer, as supplied by the Court in the case of Gold v. Fisher, is- it depends.

. . . .a child of employable age who actively abandons the non-custodial parent by refusing all contact and visitation" may forfeit any entitlement to support In contrast, where it is the parent who causes a breakdown in communication with his child, or has made no serious effort to contact the child and exercise his visitation rights, the child will not be deemed to have abandoned the parent.

The parent seeking to have the child “constructively emancipated” has the burden of proof. From my experience, given that this is a drastic remedy, which may punish the custodial parent (who may or may not be at fault) as much as the child, courts strive to discover the true origins of breakdown of non custodial parent-child relationship.

If the evidence shows that the non-custodial parent is in any way at fault for the estrangement, the application will be denied and the obligation to pay support will continue. If the non-custodial parent is blameless, support will be terminated.
 

Any child born to a married woman by means of artificial insemination performed by persons duly authorized to practice medicine and with the consent in writing of the woman and her husband, shall be deemed the legitimate, natural child of the husband and his wife for all purposes. . . . The aforesaid written consent shall be executed and acknowledged by both the husband and wife and the physician who performs the technique shall certify that he [or she] had rendered the service.

Indeed, the agreement left the child fatherless without any hearing or analysis of the child's rights and interests. Given that "the needs of a child must take precedence over the terms of the agreement when it appears that the best interests of the child are not being met," we agree that the parties' agreement which preceded any determination of legal paternity to leave the child without the husband's support cannot stand

A modification is "a change in a child support order that affects the amount, scope, or duration of the order and modifies, replaces, supersedes, or otherwise is made subsequent to the child support order" (28 USC § 1738B [b]). Here, the New York order changed the amount of the initial order (increasing it by $100 per week), the scope of the initial order (adding a provision for college expenses), and the duration of the initial order (extending the father's obligation for three years). Undoubtedly, the New York order was "made subsequent" to the Connecticut order. Therefore, under the plain language of the federal statute, a second order for child support is a "modification" of Connecticut's order.

Consider the case of a client of Ms. Gutfriend’s who was scheduled for a hearing in mid-November to determine whether she could get her daughter back from foster care, where the child had been for 10 months.


The hearing was set for 10 a.m., Ms. Gutfriend recalled, but it was a day when only two of the four elevators in the building were working. The lines to get on the elevator and up to the hearing rooms stretched back two city blocks. Her client phoned upstairs to let her know she was stuck in the line, but was not able to get upstairs in time.


The judge agreed to call the hearing again an hour later, but the client was still in line. So the judge, who had something like 70 other cases to try that day, rescheduled the no-shows for the next available date. For this mother, the next chance to plead her case and get her child back was in January.

A new Convention…designed to respond to the needs of children and other dependents by providing international procedures which are simple, swift, cost-effective, accessible, and fair.


Unpaid child support – as well as support of other dependent family members – amounts to billions of Euros worldwide. When the person liable for support lives abroad, the difficulties of recovery are often insurmountable. At present, international procedures are typically slow, complicated, costly, and under-utilized. They are simply not serving the needs of the children and other family dependents who, in a mobile world in which multinational families are no longer exceptional, are increasing in number exponentially. The new Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance is designed to respond to the often modest needs of children and other dependents by providing international procedures which are simple, swift, cost-effective, accessible, and fair.

Since January 2007, when the new federal passport rules were announced, Connecticut has collected nearly $180,000 from 44 non-custodial parents who were notified that their passport privileges were in jeopardy -- a significant jump in the normal collection rate from passport denial.”

The rest of the country is seeing a similar effect. In the first six months of 2007, about $22.5 million in child support was collected nationwide through the federal Passport Denial Program. It took all of 2006 to collect about that much through passport denials.

In Chamberlain v. Commissioner, the U.S. Tax Court ruled that the former husband (taxpayer) was not entitled to the dependent deduction for one of his children because he didn't attach a valid IRS Form 8332 (Release of Claim to Exemption for Child of Divorced or Separated Parents) to his 2003 Federal tax return (the child credit was also denied because it is premised on being entitled to the dependent deduction for the child).

The taxpayer's former wife executed a Form 8332 in which she relinquished the dependency deduction for one of their two children beginning in 1995 and for all future years. The taxpayer claimed that he attached the original Form 8332 to his 1995 return, but that a subsequent fire destroyed all of his copies. The IRS was unable to provide a copy because their 1995 tax return information had been destroyed (pursuant to IRS document destruction policies).

This result may seem harsh, but as the Court indicated, "Although we are sympathetic with [taxpayer's] plight, we are bound by the wording of the statute as enacted and accompanying regulations when consistent therewith.

 Child custody is based upon the best interests of the children.   It would be virtually impossible to make a best interests determination when the parties are first getting married and before children are even born. For this reason, a custody determination should only be made at the time parents elect to divorce.