You pay child support in New York. You’re divorced, but now you’re planning on remarrying. As you contemplate this happy event, you wonder if remarriage will affect your child support order. This article will seek to shed some light on that issue.
In New York, the Child Support Standards Act (CSSA) controls how family courts award child support. Under the CSSA, there are basically three elements of child support:
Courts strictly follow CSSA guidelines to determine child support. A judge must calculate the parents’ combined income, then multiply this figure by a certain percentage to reach the total child support amount. The percentage varies, based on the number of children involved. When the total support amount is calculated, the judge apportions it between the parents, based on the proportion of their individual income to the combined income.
If the combined income exceeds a certain “threshold” - $141,000 as of January 31, 2014 - the court follows a three-step process to calculate the total support figure. In step one, the court determines a support figure by multiplying the threshold amount by the guidelines percentage. (As explained in the paragraph above.)
In step two, the court arrives at an additional support figure based on the income amount in excess of the threshold. For example, let’s say the parents’ combined income is $150,000. The court would use step one up to $141,000, and then step two for the remaining $9,000. To reach the step two support figure, the court has the discretion to use the guideline percentage. The court can also consider several other factors, including:
In step three, the court combines the support figures from steps one and two to calculate the total child support award.
Income is obviously a key element in establishing child support. So a level playing field in that regard is important. Therefore, if the court determines that a parent has purposely reduced income in order to reduce or avoid a child support obligation, the CSSA allows a judge to attribute or “impute” income to that parent, based on the parent’s former resources or income.
Can parents modify a child support award? Yes. Upon request for modification of a child support order, the court will review all the relevant financial documentation, as well as the applicable law, and decide whether (and how much) to change an existing order. However, in order for the court to do this, you have to prove a change in circumstances justifying the modification.
As to the question of remarriage and modification of a child support order, the issue is whether the remarriage creates such a change in circumstances.
Why possibly? Because remarriage alone doesn’t entitle a parent to a modification of child support. Whether you, your ex, or both, have remarried, the new spouse has no duty to support your children from a prior marriage or relationship. But what if the remarriage results in the arrival of a new child? Then the matter gets a bit trickier.
For a long time New York followed what is known as common law regarding the issue of additional children affecting preexisting child support. Under common law, having a new child was not a valid basis for changing a support order, because your primary duty was to the children of your prior relationship, and no one forced you to remarry and have more children.
New York courts now acknowledge that even though they must act in the first children's best interests, they cannot ignore the newly-formed family's needs.
Today, when parents request a child support modification, judges may consider additional children’s needs. This is definitely the case where the custodial parent (the parent with whom the child primarily resides) requests an increase in support from the parent with the new child. And, it also seems to be gaining acceptance as an element in cases in which a new parent, who is paying child support for children from a prior relationship, requests a reduction in that support.
There is a provision in the CSSA that appears to endorse this trend. Under certain circumstances, a judge may decide that a parent’s share of child support under the guidelines is unjust or inappropriate. In making that decision, the judge can consider that parent’s new children's needs, which will probably weigh in favor of reducing child support.
If you want to use the above-referenced “unjust or inappropriate” provision of the CSSA to reduce child support, you should know that the judge will not only look at your income, but your new spouse’s income as well. The CSSA states that judges can consider the “new child” argument only if the resources available to support this new child are less than the resources available to support the children of the prior relationship. In other words, if you and your new spouse’s combined income is equal to, or greater than, the combined income of you and your ex, you’re basically out of luck.
The topic of remarriage and child support in New York is a complicated one. This article is meant to give you just a general idea of the issues involved. If you find yourself in this situation, be sure to consult a qualified family law attorney with any questions you may have.