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Uncontested Divorce With Children:
Under current New York State Law and Court procedure, for an uncontested divorce involving parties with children, where there will be no court appearance, a written agreement is required and it must contain certain mandatory provisions. The written agreement must contain provisions for custody of the children (either sole or joint), visitation or access to the children by each party, health insurance for the children and child support. New York State Law requires that child support be based on a percentage of the parties' annual income. The annual income is generally the gross income minus FICA (Federal and State Income taxes are not deducted from the gross income to determine child support) and New York City Income Tax (if applicable). The current percentages for calculating child support obligations are: one child 17%; two children 25%; three children 29%; four children 31%; five or more children 35%. The parties can agree to a higher or lower amount, but a specific reason for the deviation must be included in the written agreement and it is subject to the Court's approval. Under current New York State Law, child support obligations continue until the child reaches the age of 21 years, or is sooner emancipated. If daycare is required for the custodial parent to attend employment or an educational program which will be used to obtain employment, the agreement must also provide for the sharing of the daycare costs. The cost of the daycare would be shared on a basis determined by each party's percentage of the total income of both parents. Under current New York State Law, the party receiving the child support has the right to receive the child support through the party's County Office of Child Support Enforcement. If the party receiving child support elects to use the services of Child Support Enforcement, the party paying the child support would have to send the payments to the Office of Child Support Enforcement on a regular schedule, established by that office. If the party receiving the child support elects not to use the services of the Office of Child Support Enforcement, that party must waive this right in a written statement. The issue of the payment of college expenses for the children should also be addressed in any written agreement submitted to the Court. The agreement should outline an agreement between the divorcing parties as to their respective responsibilities concerning the payment of college expenses. A commonly used agreement is that after all grants and monies previously put aside for college costs are exhausted, the parties would split the cost of college, with each party's maximum liability being their share of the cost of sending the child to the State University of New York system for not more than five years. It is not required that the responsibility of paying for college expenses be included in a divorce agreement, but if it is not provided for at the time of the divorce, you may not be able to require your spouse to contribute to college costs in the future. The issue of claiming children as dependents on income tax returns should also be addressed in a written agreement. Under current IRS regulations, the party who has physical custody of the children has the exclusive right to claim the children as tax dependents on their income tax returns. It is common for parties in amicable divorces to agree to split the right to claim the children as tax dependents. In order for my office to prepare the child support agreement, you must provide written documentation of income for both parents. The documentation should consist of W-2s, recent pay stubs and income tax returns. If there are existing Family Court Orders concerning child support, custody or visitation, you must provide a copy of such Orders. |
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