What is my obligation to child support for my 19 year old son who is in college?
Full Question:
My 19 year old son is a full time college student and chose to move out of his mothers house and move into an apartment with a friend. Should I still be paying child support on him or has he emancipated himself?
11/01/2007 |
Category: Divorce ยป Child Support |
State: New York |
#11388
Answer:
The following is a New York statute:
§ 413 Fam. Ct. Act. Parents' duty to support child.
1. (a) Except as provided in subdivision two of this section, the parents
of a child under the age of twenty-one years are chargeable with the
support of such child and, if possessed of sufficient means or able to earn
such means, shall be required to pay for child support a fair and
reasonable sum as the court may determine. The court shall make its award
for child support pursuant to the provisions of this subdivision. The court
may vary from the amount of the basic child support obligation determined
pursuant to paragraph (c) of this subdivision only in accordance with
paragraph (f) of this subdivision.
(b) For purposes of this subdivision, the following definitions shall be
used:
(1) "Basic child support obligation" shall mean the sum derived by adding
the amounts determined by the application of subparagraphs two and three of
paragraph (c) of this subdivision except as increased pursuant to
subparagraphs four, five, six and seven of such paragraph.
(2) "Child support" shall mean a sum to be paid pursuant to court order
or decree by either or both parents or pursuant to a valid agreement
between the parties for care, maintenance and education of any
unemancipated child under the age of twenty-one years.
(3) "Child support percentage" shall mean:
(i) seventeen percent of the combined parental income for one child;
(ii) twenty-five percent of the combined parental income for two
children;
(iii) twenty-nine percent of the combined parental income for three
children;
(iv) thirty-one percent of the combined parental income for four
children; and
(v) no less than thirty-five percent of the combined parental income for
five or more children.
(4) "Combined parental income" shall mean the sum of the income of both
parents.
(5) "Income" shall mean, but shall not be limited to, the sum of the
amounts determined by the application of clauses (i), (ii), (iii), (iv),
(v) and (vi) of this subparagraph reduced by the amount determined by the
application of clause (vii) of this subparagraph:
(i) gross (total) income as should have been or should be reported in the
most recent federal income tax return. If an individual files his/her
federal income tax return as a married person filing jointly, such person
shall be required to prepare a form, sworn to under penalty of law,
disclosing his/her gross income individually;
(ii) to the extent not already included in gross income in clause (i) of
this subparagraph, investment income reduced by sums expended in connection
with such investment;
(iii) to the extent not already included in gross income in clauses (i)
and (ii) of this subparagraph, the amount of income or compensation
voluntarily deferred and income received, if any, from the following
sources:
(A) workers' compensation,
(B) disability benefits,
(C) unemployment insurance benefits,
(D) social security benefits,
(E) veterans benefits,
(F) pensions and retirement benefits,
(G) fellowships and stipends, and
(H) annuity payments;
(iv) at the discretion of the court, the court may attribute or impute
income from, such other resources as may be available to the parent,
including, but not limited to:
(A) non-income producing assets,
(B) meals, lodging, memberships, automobiles or other perquisites that
are provided as part of compensation for employment to the extent that such
perquisites constitute expenditures for personal use, or which expenditures
directly or indirecly confer personal economic benefits,
(C) fringe benefits provided as part of compensation for employment, and
(D) money, goods, or services provided by relatives and friends;
(v) an amount imputed as income based upon the parent's former resources
or income, if the court determines that a parent has reduced resources or
income in order to reduce or avoid the parent's obligation for child
support;
(vi) to the extent not already included in gross income in clauses (i)
and (ii) of this subparagraph, the following self-employment deductions
attributable to self-employment carried on by the taxpayer:
(A) any depreciation deduction greater than depreciation calculated on a
straight-line basis for the purpose of determining business income or
investment credits, and
(B) entertainment and travel allowances deducted from business income to
the extent said allowances reduce personal expenditures;
(vii) the following shall be deducted from income prior to applying the
provisions of paragraph (c) of this subdivision:
(A) unreimbursed employee business expenses except to the extent said
expenses reduce personal expenditures,
(B) alimony or maintenance actually paid to a spouse not a party to the
instant action pursuant to court order or validly executed written
agreement,
(C) alimony or maintenance actually paid or to be paid to a spouse that
is a party to the instant action pursuant to an existing court order or
contained in the order to be entered by the court, or pursuant to a validly
executed written agreement, provided the order or agreement provides for a
specific adjustment, in accordance with this subdivision, in the amount of
child support payable upon the termination of alimony or maintenance to
such spouse,
(D) child support actually paid pursuant to court order or written
agreement on behalf of any child for whom the parent has a legal duty of
support and who is not subject to the instant action,
(E) public assistance,
(F) supplemental security income,
(G) New York city or Yonkers income or earnings taxes actually paid, and
(H) federal insurance contributions act (FICA) taxes actually paid.
(6) "Self-support reserve" shall mean one hundred thirty-five percent of
the poverty income guidelines amount for a single person as reported by the
federal department of health and human services. For the calendar year
nineteen hundred eighty-nine, the self-support reserve shall be eight
thousand sixty-five dollars. On March first of each year, the self-support
reserve shall be revised to reflect the annual updating of the poverty
income guidelines as reported by the federal department of health and human
services for a single person household.
(c) The amount of the basic child support obligation shall be determined
in accordance with the provision of this paragraph:
(1) The court shall determine the combined parental income.
(2) The court shall multiply the combined parental income up to eighty
thousand dollars by the appropriate child support percentage and such
amount shall be prorated in the same proportion as each parent's income is
to the combined parental income.
(3) Where the combined parental income exceeds the dollar amount set
forth in subparagraph two of this paragraph, the court shall determine the
amount of child support for the amount of the combined parental income in
excess of such dollar amount through consideration of the factors set forth
in paragraph (f) of this subdivision and/or the child support percentage.
(4) Where the custodial parent is working, or receiving elementary or
secondary education, or higher education or vocational training which the
court determines will lead to employment, and incurs child care expenses as
a result thereof, the court shall determine reasonable child care expenses
and such child care expenses, where incurred, shall be prorated in the same
proportion as each parent's income is to the combined parental income. Each
parent's pro rata share of the child care expenses shall be separately
stated and added to the sum of subparagraphs two and three of this
paragraph.
(5) The court shall prorate each parent's share of future reasonable
health care expenses of the child not covered by insurance in the same
proportion as each parent's income is to the combined parental income.
The non-custodial parent's pro rata share of such health care expenses
shall be paid in a manner determined by the court, including direct
payment to the health care provider.
(6) Where the court determines that the custodial parent is seeking work
and incurs child care expenses as a result thereof, the court may determine
reasonable child care expenses and may apportion the same between the
custodial and non-custodial parent. The non-custodial parent's share of
such expenses shall be separately stated and paid in a manner determined by
the court.
(7) Where the court determines, having regard for the circumstances of
the case and of the respective parties and in the best interests of the
child, and as justice requires, that the present or future provision of
post-secondary, private, special, or enriched education for the child is
appropriate, the court may award educational expenses. The non-custodial
parent shall pay educational expenses, as awarded, in a manner determined
by the court, including direct payment to the educational provider.
(d) Notwithstanding the provisions of paragraph (c) of this
subdivision, where the annual amount of the basic child support
obligation would reduce the non-custodial parent's income below the
poverty income guidelines amount for a single person as reported by the
federal department of health and human services, the basic child support
obligation shall be twenty-five dollars per month or the difference
between the non-custodial parent's income and the self-support reserve,
whichever is greater. Notwithstanding the provisions of paragraph (c) of
this subdivision, where the annual amount of the basic child support
obligation would reduce the non-custodial parent's income below the
self-support reserve but not below the poverty income guidelines amount
for a single person as reported by the federal department of health and
human services, the basic child support obligation shall be fifty dollars
per month or the difference between the non-custodial parent's income and
the self-support reserve, whichever is greater.
(e) Where a parent is or may be entitled to receive non-recurring
payments from extraordinary sources not otherwise considered as income
pursuant to this section, including but not limited to:
(1) Life insurance policies;
(2) Discharges of indebtedness;
(3) Recovery of bad debts and delinquency amounts;
(4) Gifts and inheritances; and
(5) Lottery winnings, the court, in accordance with paragraphs (c), (d)
and (f) of this subdivision may allocate a proportion of the same to child
support, and such amount shall be paid in a manner determined by the court.
(f) The court shall calculate the basic child support obligation, and the
non-custodial parent's pro rata share of the basic child support
obligation. Unless the court finds that the non-custodial parents's
pro-rata share of the basic child support obligation is unjust or
inappropriate, which finding shall be based upon consideration of the
following factors:
(1) The financial resources of the custodial and non-custodial parent,
and those of the child;
(2) The physical and emotional health of the child and his/her special
needs and aptitudes;
(3) The standard of living the child would have enjoyed had the marriage
or household not been dissolved;
(4) The tax consequences to the parties;
(5) The non-monetary contributions that the parents will make toward the
care and well-being of the child;
(6) The educational needs of either parent;
(7) A determination that the gross income of one parent is substantially
less than the other parent's gross income;
(8) The needs of the children of the non-custodial parent for whom the
non-custodial parent is providing support who are not subject to the
instant action and whose support has not been deducted from income pursuant
to subclause (D) of clause (vii) of subparagraph five of paragraph (b) of
this subdivision, and the financial resources of any person obligated to
support such children, provided, however, that this factor may apply only
if the resources available to support such children are less than the
resources available to support the children who are subject to the instant
action;
(9) Provided that the child is not on public assistance (i) extraordinary
expenses incurred by the non-custodial parent in exercising visitation, or
(ii) expenses incurred by the non-custodial parent in extended visitation
provided that the custodial parent's expenses are substantially reduced as
a result thereof; and
(10) Any other factors the court determines are relevant in each case,
the court shall order the non-custodial parent to pay his or her pro rata
share of the basic child support obligation, and may order the
non-custodial parent to pay an amount pursuant to paragraph (e) of this
subdivision.
(g) Where the court finds that the non-custodial parent's pro rata share
of the basic child support obligation is unjust or inappropriate, the court
shall order the non-custodial parent to pay such amount of child support as
the court finds just and appropriate, and the court shall set forth, in a
written order, the factors it considered; the amount of each party's pro
rata share of the basic child support obligation; and the reasons that the
court did not order the basic child support obligation. Such written order
may not be waived by either party or counsel; provided however, and
notwithstanding any other provision of law, including but not limited to
section four hundred fifteen of this act, the court shall not find that the
non-custodial parent's pro rata share of such obligation is unjust or
inappropriate on the basis that such share exceeds the portion of a public
assistance grant which is attributable to a child or children. In no
instance shall the court order child support below twenty-five dollars per
month. Where the non-custodial parent's income is less than or equal to the
poverty income guidelines amount for a single person as reported by the
federal department of health and human services, unpaid child support
arrears in excess of five hundred dollars shall not accrue.
(h) A validly executed agreement or stipulation voluntarily entered into
between the parties after the effective date of this subdivision presented
to the court for incorporation in an order or judgment shall include a
provision stating that the parties have been advised of the provisions of
this subdivision and that the basic child support obligation provided for
therein would presumptively result in the correct amount of child support
to be awarded. In the event that such agreement or stipulation deviates
from the basic child support obligation, the agreement or stipulation must
specify the amount that such basic child support obligation would have been
and the reason or reasons that such agreement or stipulation does not
provide for payment of that amount.
Such provision may not be waived by either party or counsel. Nothing
contained in this subdivision shall be construed to alter the rights of
the parties to voluntarily enter into validly executed agreements or
stipulations which deviate from the basic child support obligation
provided such agreements or stipulations comply with the provisions of
this paragraph. The court shall, however, retain discretion with respect
to child support pursuant to this section. Any court order or judgment
incorporating a validly executed agreement or stipulation which deviates
from the basic child support obligation shall set forth the court's
reasons for such deviation.
(i) Where either or both parties are unrepresented, the court shall not
enter an order or judgment other than a temporary order pursuant to section
two hundred thirty-seven of this article, that includes a provision for
child support unless the unrepresented party or parties have received a
copy of the child support standards chart promulgated by the commissioner
of social services pursuant to subdivision two of section one hundred
eleven-i of the social services law. Where either party is in receipt of
child support enforcement services through the local social services
district, the local social services district child support enforcement unit
shall advise such party of the amount derived from application of the child
support percentage and that such amount serves as a starting point for the
determination of the child support award, and shall provide such party with
a copy of the child support standards chart. In no instance shall the court
approve any voluntary support agreement or compromise that includes an
amount for child support less than twenty-five dollars per month.
(j) In addition to financial disclosure required in section four hundred
twenty-four-a of this article, the court may require that the income and/or
expenses of either party be verified with documentation including, but not
limited to, past and present income tax returns, employer statements, pay
stubs, corporate, business, or partnership books and records, corporate and
business tax returns, and receipts for expenses or such other means of
verification as the court determines appropriate. Nothing herein shall
affect any party's right to pursue discovery pursuant to this chapter, the
civil practice law and rules, or the family court act.
(k) When a party has defaulted and/or the court is otherwise presented
with insufficient evidence to determine gross income, the court shall order
child support based upon the needs or standard of living of the child,
whichever is greater. Such order may be retroactively modified upward,
without a showing of change in circumstances.
(1) In any action or proceeding for modification of an order of child
support existing prior to the effective date of this paragraph, brought
pursuant to this article, the child support standards set forth in
paragraphs (a) through (k) of this subdivision shall not constitute grounds
for modification of such support order; provided, however, that (1) where
the circumstances warrant modification of such order, or (2) where any
party objects to an adjusted child support order made or proposed at the
direction of the support collection unit pursuant to section one hundred
eleven-h or one hundred eleven-n of the social services law, and the court
is reviewing the current order of child support, such standards shall be
applied by the court in its determination with regard to the request for
modification or disposition of an objection to an adjusted child support
order made or proposed by a support collection unit. In applying such
standards, when the order to be modified incorporates by reference or
merges with a validly executed separation agreement or stipulation of
settlement, the court may consider, in addition to the factors set forth in
paragraph (f) of this subdivision, the provisions of such agreement or
stipulation concerning property distribution, distributive award and/or
maintenance in determining whether the amount calculated by using the
standards would be unjust or inappropriate.
2. Nothing in this article shall impose any liability upon a person to
support the adopted child of his or her spouse, if such child was adopted
after the adopting spouse is living separate and apart from the
non-adopting spouse pursuant to a legally recognizable separation
agreement or decree under the domestic relations law. Such liability
shall not be imposed for so long as the spouses remain separate and apart
after the adoption.
3. a. One-time adjustment of child support orders issued prior to
September fifteenth, nineteen hundred eighty-nine. Any party to a child
support order issued prior to September fifteenth, nineteen hundred
eighty-nine on the behalf of a child in receipt of public assistance or
child support services pursuant to section one hundred eleven-g of the
social services law may request that the support collection unit undertake
one review of the order for adjustment purposes pursuant to section one
hundred eleven-h of the social services law. A hearing on the adjustment of
such order shall be granted upon the objection of either party pursuant to
the provisions of this section. An order shall be adjusted if as of the
date of the support collection unit's review of the correct amount of child
support as calculated pursuant to the provisions of this section would
deviate by at least ten percent from the child support ordered in the last
permanent support order of the court. Additionally, a new support order
shall be issued upon a showing that the current order of support does not
provide for the health care needs of the child through insurance or
otherwise. Eligibility of the child for medical assistance shall not
relieve any obligation the parties otherwise have to provide for the health
care needs of the child. The support collection unit's review of a child
support order shall be made on notice to all parties to the current support
order and shall be subject to the provisions of section four hundred
twenty-four-a of this article. Nothing herein shall be deemed in any way to
limit, restrict, expand or impair the rights of any party to file for a
modification of a child support order as is otherwise provided by law.
b. Upon receipt of an adjustment finding and where appropriate a proposed
order in conformity with such finding filed by either party or by the
support collection unit, a party shall have thirty-five days from the date
of mailing of the adjustment finding and proposed adjusted order, if any,
to submit to the court identified thereon specific written objections to
such finding and proposed order.
(1) If specific written objections are submitted by either party or by
the support collection unit, a hearing shall be scheduled by the court on
notice to the parties and the support collection unit, who shall have the
right to be heard by the court and to offer evidence in support of or in
opposition to adjustment of the support order.
(2) The party filing the specific written objections shall bear the
burden of going forward and the burden of proof; provided, however, that if
the support collection unit has failed to provide the documentation and
information required by subdivision fourteen of section one hundred
eleven-h of the social services law, the court shall first require the
support collection unit to furnish such documents and information to the
parties and the court.
(3) If the court finds by a preponderance of the evidence that the
specific written objections have been proven, the court shall recalculate
or readjust the proposed adjusted order accordingly or, for good cause,
shall remand the order to the support collection unit for submission of a
new proposed adjusted order. Any readjusted order so issued by the court or
resubmitted by the support collection unit following remand by the court
shall be effective as of the date the proposed adjusted order would have
been effective had no written objections been filed.
(4) If the court finds that the specific written objections have not been
proven by a preponderance of the evidence, the court shall immediately
issue the adjusted order, which shall be effective as of the date the order
would have been effective had no written objections been filed.
(5) If the determination of the specific written objections has been made
by a family court support magistrate, the parties shall be permitted to
obtain judicial review of such determination by filing timely written
objections pursuant to subdivision (e) of section four hundred thirty-nine
of this act.
(6) If the court receives no specific written objections to the support
order within thirty-five days of the mailing of the proposed order, the
clerk of the court shall immediately issue the order without any further
review, modification, or other prior action by the court or any judge or
support magistrate thereof, and the clerk shall immediately transmit copies
of the order of support to the parties and to the support collection unit.
c. A motion to vacate an order of support adjusted pursuant to this
section may be made no later than forty-five days after an adjusted support
order is executed by the court where no specific written objections to the
proposed order have been timely received by the court.
Such motion shall be granted only upon a determination by the court
issuing such order that personal jurisdiction was not timely obtained
over the moving party.
4. On-going cost of living adjustment of child support orders issued
prior to September fifteenth, nineteen hundred eighty-nine. Any party to a
child support order issued prior to September fifteenth, nineteen hundred
eighty-nine on the behalf of a child in receipt of public assistance or
child support services pursuant to section one hundred eleven-g of the
social services law may request that the support collection unit review the
order for a cost of living adjustment in accordance with the provisions of
section four hundred thirteen-a of this article.
