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Can I Get Child Support During A Separation In New York?

Child support can start via a separation. In other words, if it’s reduced to a separation agreement, the parties can also work out an informal arrangement. They really don’t even need to go through attorneys, because they could access the law online. The court’s website is NYCourts.gov or they could go to the New York State Office of Child Support Enforcement which has a number of materials that the parties can look at, and they could calculate child support on their own. They could each exchange their financials, do the calculations, set up a direct deposit from the father’s bank account into the mother’s bank account, and never see a lawyer. As long as they live by that agreement and they’re fine by that agreement, there’s no need to go to court.

Obviously under that scenario, one would highly recommend they at least consult with an attorney to make sure they’re doing things correctly and that they’re arriving at a fair amount. Theoretically this can be done, but with the proviso that any agreement like that is completely unenforceable. If the non-custodial parent stops paying child support, however, the custodial parent’s only remedy is to then file a court case and get a court order from that point forward – but nothing pursuant to the informal arrangement would be enforceable.

Can The Amount Of Child Support In New York Ever Be Adjusted?

Yes – it’s codified in the Family Court Act and elsewhere that child support can be modified under one of three scenarios. The first is if it has been three years since the original order was entered, modified, or adjusted. The second is if there has been a change in either party’s income by 15% or more, whether up or down. The third way to change child support is simply by satisfying the old standard, which is what’s called a “substantial change of circumstances.”

Nevertheless, the parties can always change how child support gets adjusted if there was a valid divorce settlement agreement and the agreement stated something like, “child support is set and can only be modified if there is an unanticipated change of circumstance.”

That has been the basis for changing child support since 2010 in New York State.

How Long Should Child Support Last?

Pursuant to statute, child support in New York lasts until the child is 21 or is sooner emancipated. That usually means the child moves out from the custodial parent’s house and gets a full-time job and they’re self-supporting. That’s one way. They could also join the armed services, and there are other scenarios under which the law would consider them to be emancipated. So theoretically, child support could be ended sooner than 21.

There’s also what’s called constructive emancipation in which the child refuses unjustifiably to have a relationship with the non-custodial parent. That scenario usually comes in with an older child or a teenager.

Even though that’s a theoretical basis to have the child declared emancipated, it almost never works simply because the case law says that the child has to be completely unjustified in their refusal. Even if they’re completely unjustified, the child may need money from the non-custodial parent to eat, keep a roof over their head, to keep clothes on their back, and so on. Judges are often reluctant to completely eliminate child support even if they find that the child is completely unjustified in refusing a relationship. The next problem is that once they turn 18, they are considered an adult for custody and visitation purposes. So it’s not even as though the non-custodial parent can file an application before a custody and visitation judge and attempt to prove that their visitation rights have been frustrated. They can’t even do that.

The only thing that they could theoretically do is bring that up to the Support Magistrate. It almost never works and I usually advise clients or potential clients that want to raise that defense, that they may be spending many thousands of dollars on a case that is extremely unlikely to result in an emancipation declaration.

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