D. Support Flashcards
How do Courts award Spousal Maintenance (temporary/post-divorce maintenance)?*
If Payor is paying child support to Payee => Spousal maintenance will be LOWER of either;
- 20% of Payor’s income (up to $184,000) MINUS 25% of Payee’s income
- 40% of BOTH Parties’ combined income (up to Payor’s income at $184,000) MINUS 25% of Payee’s income
If Payor is NOT paying child support to Payee => Spousal maintenance will be LOWER of either;
- 30% of Payor’s income (up to $184,000) MINUS 20% of Payee’s income
- 40% of BOTH Parties’ combined income
(up to Payor’s income at $184,000) MINUS Payee’s income
FYI Court may adjust guideline amount (if found unjust/inappropriate)
When may Post-divorce Maintenance terminate?*
Death of Spouse
Payee spouse becomes re-married
Invalid marriage
Modification of marriage
Cohabitation
- Meets standard under s. 248
How may courts determine duration of Post-divorce Maintenance?*
Schedule (DRL 236(B)(6)(f))
- Advisory ONLY (NOT exact!!!)
- 0-15 years’ marriage (15-30% length of marriage)
- 15-20 years’ marriage (30-40% length of marriage)
- +20 years’ marriage (35-50% length of marriage)
Statutory factors
- NOT based on length of marriage
Until what age are parents liable for Child Support?*
21 years of age!!!
UNLESS emancipated earlier by;
- Marriage!!!
- Full-time employment!!!
- Military service enlisting (full time)
How is the amount of Child Support determined?*
CSSA (Child Support Standards Act)
1) Apply designated statutory %
- 17% (1 child)
- 25% (2 children)
- 29% (3 children)
- 31% (4 children)
- 35% (5 or more children)
2) Towards Parents’ combined income (up to $148,000)
- Divided between Parties pro rata (based on Parties’ individual income)
- Income cap can be extended
3) Potential ‘add-ons’
- Child care
- Health insurance premiums
- Unreimbursed health expenses
- Educational expenses
NOT marital fault
How may Parents ‘opt out’ from CSSA provisions?*
1) Knowingly made decision where Parents;
- Knew of CSSA provisions
- Knew presumptively correct amount
- Explain reasons for deviation
2) Specific recitals in written agreement
Is Court bound by agreement that fails to provide adequate support for Parties’ children?*
NO
What is required for modification of child support obligation before/after 30th October 2010?*
Modification BEFORE 30th October 2010
1) Derived from Agreement incorporated (NOT merged) into judgment of divorce
2) Party must establish either;
- Agreement was unfair/inequitable when entered into
- Unanticipated + unreasonable change in circumstances has occurred resulting in Child’s concomitant need
- Child’s needs are NOT being adequately met
Modification AFTER 30th October 2010
1) Derived from Agreement incorporated (NOT merged) into judgment of divorce
2) Substantial change of circumstances
When may court also modify Child Support Order?*
3 years passed since Order was entered/last modified/adjusted
Party’s gross income changed by 15% or more since Order was entered/last modified/adjusted
Party’s gross income reduced ‘involuntarily’ + Party made diligent attempts to secure employment related to his education/ability/experience
What is required for Party to modify previous Maintenance Order/Judgment obtained from Court?*
Recipient’s inability to be self-supporting
Substantial change in circumstance
- Financial hardship
Payor’s actual full/partial retirement
- If retirement results in substantial change in financial circumstances
Termination of child support
What is required for Party to modify Maintenance award derived from agreement?*
Extreme hardship
- On EITHER party
When may Court terminate maintenance arrears?
Interference with visitation rights
Recipient is habitually living with another person + holding himself out as other person’s spouse (but NOT married)
NOT arrears accrued before modification application
- UNLESS defaulting party shows good cause for failure to apply from relief from Order
