THE NEW CHILD SUPPORT LAW, IS IT REALLY SO NEW AND DIFFERENT?
By Sari M. Friedman, Esq.
Governor Pataki signed legislation effective January 1, 1998 which modify some child support rules. This article will highlight some of the more significant changes may affect you. The current law presently allows for a review of the amount of child support amounts every three years in order to determine if an increase is warranted. This review process itself is different for three categories of custodial parents:
For the two groups that are affected, the SCU sends out a financial disclosure form that the non-custodial parent must fill out. Should he or she refuse, SCU is empowered to obtain the necessary information from the New York State Department of Taxation and Finance (the State version of the IRS).
- Custodial parents on public assistance (PA). For these parents, everything is automatic.
The custodial parent has no say in the process.
- Custodial parents not on PA whose support is being collected by the Support Collection Unit (SCU).
Parents in this group currently receive a mailing every three years advising them of their rights to have their child support
amount reviewed for possible increase. They must respond affirmatively if they desire this service.
- Custodial parents not on public assistance and not having support collected by SCU, are not affected by this law.
After receipt of the financial disclosure form, the SCU reviews the income. The triggering device for an adjustment in the amount of child support would be an increase in the paying parent's income of at least 10 percent since the amount of support was last ordered. Such an increase would require a pro-rata increase in support payments.
SCU then sends a notice of the adjusted amount to both parents. The paying parent then has 35 days to object to the new rate. In the absence of such an objection, a new order of child support is issued on the new rate. If, on the other hand, an objection is filed within 35 days, a hearing is held before a Hearing Examiner in Family Court for determination within 45 days.
The objection process can continue if either parent disagrees with the Hearing Examiner's findings. The parent can file an objection and a new hearing will be held before a Judge. But even here, if either parent disagrees with the Judge's decision, that parent can file an appeal. Before the new law, which we will discuss below, this process was repeated every three years.
The New Law:
As of January 1, 1997, instead of a three year cycle, the process will now be on a two year cycle. In addition, instead of the trigger being the difference in the payer's income, the new trigger will be based on a 10 percent increase in the Consumer Price Index. The rest of the procedure remains the same.
Currently, an increase of at least ten percent in the payer's income triggered an automatic increase in child support. Under the new law, a 10% increase in the CPI by ten percent does not mean that the amount of child support you pay will increase.
The Child Support Standards Act formula must still be applied to your income.
At the risk of oversimplification, the Act states that after subtracting all Social Security, of the remainder of gross income, one pays: 17% of income for child support of one child; 25% for two children; 29% for three children; 31% for four children; and 35% for five or more children. If your income has remained unchanged, then the support you pay theoretically should remain the same.
Remember, based on economics over the past 5 to 8 years, there is a greater likely hood of earning ten percent more in income over a three year period than to have a ten percent increase in the CPI over a two year period. However, run away inflation as we had in the late 70's would completely change this last statement.
My prediction: this new legislation will cause less automatic child support increases than the present legislation unless we enter times of high inflation.
This new law takes effect on January 1, 1998. Some changes in this new Law are as follows:
New Enforcement Procedures:
At present a custodial parent must petition the Courts for an Order to have SCU collect their child support for them. The new legislation allows a custodial parent to simply request SCU to collect the support for him or her.
Next, SCU gives both parents notice that they will collect the support.
Then without Court intervention, SCU now collects the support.
As of October 1998, with every Court Order of support, custody and paternity (including Judgments of Divorce), the orders must include both parties social security numbers. Further, social security numbers will also have to be included on all marriage licenses and death certificates. The Department of Social Service (DSS) will be required to maintain detailed records of all support orders.
For all support orders, whether child support or spousal support, both parties will be required to keep SCU current with their social security number, address, telephone number, driver's license number, and their employer's name, address and phone number. Further, all employers in the state will be required to report to DSS the social security numbers of all newly hired employees. DSS is then to compare this information to their detailed records on support orders to match people up to their obligations. DSS then forwards this information to the Federal Director of New Hires. All this is designed to give the potential non-paying parent no place to hide throughout this nation.
Who would have thought that big brother would be the department of Social Services and not the Department of Defense or the FBI or the CIA? There will be no privacy for anyone anymore once they either get married or have a child.
I am however, very curious as to the cost to administer this program in comparison to the support collected that otherwise would never have been paid.
Job protection at last:
The new legislation also contains provisions to protect those who are the subject of an income execution order. Employers hate these orders because it forces them to garnish your pay check and mail a portion of your check to someone else, in the case of child support, usually SCU. Often such an employee would not receive a promotion he or she was otherwise entitled to because of this order against him or her. Occasionally the person subject to such an order would be fired, discharged or laid off. Other employees subject to such an order would find themselves easy targets for discipline by their employers. The new law prohibits all the above. You cannot be denied a promotion because your income is being garnished by an income deduction order for child support or spousal support. You cannot be fired, discharged or laid off because of such an order, nor can you be disciplined because of such an order.
Before you jump up and down, proving that this is why you were denied that promotion, laid off or disciplined is not always so easy to do, but at least there is now some form of protection.
As time goes by and the new law takes effect and the Courts begin to develop interpretations of the new law for its enforcement, we will revisit this topic to up date our members on how this law can or does affect us, and how to best protect ourselves.