Child Support

I often get calls or emails about child support. Child support is supposed to be simple. Many times lawyers aren't involved in child support proceedings. The family court even relegates this to a special session of the court that is conducted by Support Magistrates who are sorta like judges but not really. Family court has forms for you to fill out to request ordered support or a modification of a prior order. There is a statute on the books and you simply match up income to number of kids and voila - support order.

But of course things rarely go that smoothly.

If you or anyone close to you have been through a support proceeding you will relate to how easily these cases can get complex, weird and messy. The statutory model works for a situation where you have a couple where, for example, a father (or mother if she is not the one living with the kids) has been working the same job for 10 years, is salaried and has enjoyed regular gradual increases in income over his career. The couple splits but have two children who are the only children of the father. In this simple case in New York, the support magistrate would calculate support based on this regular and consistent income and assign the statutory support rate of 25%.

In 11 years of practice, I don't believe I've once seen such a simple example. More typical is the situation where the non-custodial parent (the one the kids aren't living with and therefore the one who is paying support to the custodial parent) has had sporadic or inconsistent income. Maybe he worked in a booming industry right before the recession and is coming off some very good years, but was just laid off and is struggling at a much lower rate of pay. (I know that there are a lot of people experiencing this right now.) Or he's doing great and just landed a job paying double his last job, which he worked at for the last ten years. Now the court has to evaluate an earning capacity of this non-custodial parent, and it has to be fair, right?

I've heard horror stories on both sides: The executive who voluntarily leaves a high paid job for the purpose of having a lower support obligation, and works an under the table job; or, the lucky one who gets a large bonus one year which has no likelihood of repeating but on which the court is now going to base a child support obligation for the next 21 years. And then there are the families with multiple children from different relationships. Again, the law has a chart of percentages based on the number of children. These rates are percentages of basically gross income (it's more complex than that, but for purposes of this discussion think of it as gross income). So for the non-custodial parent of five, a separation can take a relatively large chunk out of take home pay, which could be as low as 70% of gross. That non-custodial parent now has 35% of his pay to live on. Could be tough, but the children need support and current law protects this.

Now think of the situation (more common than you would think) of the father of three kids from an earlier marriage for whom he is ordered to pay 29% of his income as support. He remarries down the road, has two more kids, and because he is relationship-challenged, separates from this mother and now is before a support magistrate for "lucky child support order number two". Is he going to be ordered to pay 25% of his income (the going rate for two kids), which is already reduced by say 25% for deductions and 29% for the existing support order, which would net him with 21% of his income to live on? If he makes $50,000.00 a year, he'd roughly have $800 a month to live on.

This opens up a lot of issues for debate. Should we care that this guy (or gal) is going to struggle to make ends meet? Should he just step up and make it work? Get a second or third job, and live in his parents' basement at 40? Or should the court deviate from the statute (as it is allowed to do in some circumstances) and order less support? This is a common example of how a simple support determination can become complex. And, ahem, why you often actually need a lawyer to help you in family court.