COVID-19 and Child Support in New York State
At the time that this article was written, New York State and the New York State Courts were under executive orders which limit the courts ability to accept any filings except those determined to be “essential” (basically emergency filings). While the loss of income may very much feel like an emergency situation to those directly impacted by the loss, the courts do not hold loss of income as related to child support to fall under the category of essential (for a list of matters considered essential, click here).
Quick overview of Child Support basics in New York
Child support is generally paid by the non-custodial parent to the custodial parent at a rate usually pre-determined by the New York State Child Support Guidelines. Simply put, the party paying child support can be expected to pay 17% of their income for one child; 25% for two children; 29% for three; 31% for four; etc. (see the guideline chart for an estimate on how much should be paid, keep in mind that many exceptions apply).
Modification of New York State Child Support Order
Unless the parties have a written agreement submitted and accepted by the court and that agreement states otherwise, the default law for child support modification in New York considers:
(1) If a substantial change of circumstances exists;
(2) If income by either party has changed by 15% or more (up or down);
(3) If 3 or more years has gone by since the last modification or support order.
Checking off all three boxes does not guarantee that a modification will be granted, it is still up to the court to make the determination.
*It is extremely important to note that modification petitions are retroactive, meaning that the court will go back to the date the petition was filed when they make their determination and adjust monies owed by that date. In other words, if you file a modification petition on January 1, 2020 and the court finally hears and issues an order on your case on February 1, 2020 which grants your request to modify, the modification will be credited back to January 1, 2020 (4 weeks prior) which could significantly change the amount due.
What do I do if I’ve lost income due to COVID-19 and I am owed or have to pay child support?
Generally, if someone meets the criteria to seek a modification of an existing child support order, they file a petition to modify with the court. With the current social distancing requirements and statewide executive orders, the Courts are not accepting any non-essential filings (with very few limited exceptions) so how do you alert the court that a change has taken place that you feel may justify an upward or downward modification of your child support order? Consider completing the documents required to file the petition and mailing two copies to the court clerk, one certified and one by regular mail. Because of the existing executive order, the court will probably not accept your filing BUT you may be able to argue later that you made every effort to alert the court to your change in circumstances and provide proof of your mailed petition to support your claim. You can also attempt to contact the New York State Child Support Collection Unit or Court for your county and ask for assistance filing a modification petition.
Another option may be to file what is called an “Order to Show Cause” which is basically an emergency motion. I strongly suggest getting an attorney to advise as to if this may be a viable option for your particular circumstances and also to assist with the drafting and filing of an Order to Show cause as there are a variety of procedural issues that must be addressed, many of which continue to change daily or weekly with the continued development of new orders from the courts and State due to the Corona Virus pandemic.
If you’ve lost your job due to COVID-19 Filing for Unemployment may also be suggested as child support can be deducted directly from unemployment payments.
Again, the sooner you file for modification the better, as filing the petition is retroactive and waiting can cost you hundreds or even thousands of dollars, depending on how much is supposed to be paid.
Government Stimulus Checks and New York State Child Support
As most of us are aware, the government is in the process of sending “Stimulus” checks of $1,200.00 to each US Citizens that qualifies to receive the checks. If you owe arrears (back child support) in New York State, whatever you owe can be taken from your stimulus check. If the recipient of the check is now, or was at one point, receiving state benefits of any kind, there is a good chance that they will not receive the entire amount taken from the check, as much or all of the intercepted money may go to the state agencies that provided support.
What if my spouse owes child support and they take my stimulus check?
If your spouse owes arrears for child support and the government takes your check, you may be able to file an “Injured Spouse Allocation” form with the IRS which may allow you to keep your portion.
Will Bankruptcy Help Me Keep my COVID-19 Stimulus Check and pay off child support?
While child support is not dischargeable under bankruptcy, you may be able to file a Chapter 13 bankruptcy which would allow you to pay off your child support arrears over a 3-5 year period and, if done timely enough, potentially prevent your stimulus check from being intercepted. However, in considering filing a chapter 13 bankruptcy it is strongly suggested that you speak with an experienced bankruptcy attorney to discuss potential options related to restructuring child support and other associated debt.
Helpful documents and links for dealing with child support issues with COVID-19 crisis
7 tips for co-parenting during COVID-19
Administrative Order of the Chief Administrative Judge of the Courts (AO/78/20 – 3/33/20)
Administrative Order of the Chief Administrative Judge of the Courts (AO/85/20 – 4/13/20)
New York State Child Support Online – FAQs about COVID-19 and Child Support
Sample Modification Petition from NYS Courts
Jason Bost, Esq., MBA, is an attorney in the State of New York who focuses on civil litigation and entertainment law, and is the founder of the Bost Legal Group LLC, a firm providing legal counsel and representation on matters related to intellectual property, entertainment, trademark, real estate, foreclosure defense, bankruptcy, trust and estate planning, probate and surrogate court issues, immigration and civil litigation. If you have any questions feel free to contact Mr. Bost at 718-361-0299 or by email at firstname.lastname@example.org