It is common for child support to continue to be paid while a child is away at college. A child often will return  home for perhaps four months of the year. What happens when the student just stays there year round?

Often in divorce stipulations of settlement, the parties will define when a child will be deemed emancipated terminating the child support obligation. One of those occasions is often a permanent change of residence of the child away from the residence of the deemed custodial parent.

It is common for such a change of residence to exclude one occasioned by a child’s attending college away from home. Such reflects that the custodial parent must have shelter available; and pay for food and other expenses while the child is home. Often, expenses for clothing, entertainment, and other items are paid year round. Sometimes a credit is given against the periodic support obligation for all or some fraction of the room and board expenses paid by child support payor.

What happens when a child simply does not return home while attending college? That was the issue presented to Nassau County Family Court Support Magistrate Sondra Toscano in Matter of Anthony C. v. Alison C., 2021 N.Y.Misc. Lexis 3115.


Continue Reading Terminating Child Support While Child Away at College

If you delay going to court after an event that changes rights and obligations, you do so at your peril.

In Fortgang v. Fortgang, the parties were divorced in May 2011. Under their stipulation of settlement, the parties agreed that the husband would pay $2,600 per month in basic child support for the parties’ two children. The stipulation provided that this child support obligation would decrease when the parties’ older child became emancipated, but did not provide the reduced amount.

In December 2013, the older child became emancipated, but the husband continued to pay the full child support amount. In November 2015, the parties’ younger child became emancipated, but the husband continued to pay child support for several months thereafter.

In December 2016, in response to motion by the wife, the husband cross-moved, for the first time, to recoup child support overpayments. Suffolk County Supreme Court Justice David T. Reilly granted the husband’s cross motion, and awarded him a money judgment against the wife for $30,422.32 in overpaid child support.


Continue Reading Recouping Overpaid Child Support: Two Lessons

JengaOn June 12, 2018, the Court of Appeals in a 5-2 decision, affirmed the ruling discussed below.

It is common in agreements, and often the case in judicial decisions, for the parent paying periodic child support to receive a credit against those payments for college room and board expenses paid by that parent. May parties agree that the credit exceed the amount allocated by the parties to the support of the particular child attending college? No, (probably) said the Appellate Division, First Department, in its April 6, 2017 decision in Keller-Goldman v. Goldman.

The parties entered into a Stipulation of Settlement and Agreement that resolved all issues surrounding their separation. As may be relevant to the court’s determination, although the parties had four unemancipated children, the agreement only provided for support for the three children for whom the wife was deemed the custodial parent (the parties were to share equal time with these three). The husband retained custody of the fourth child, but agreed to receive no support for him from the mother. The opinion noted that had the parties not negotiated the issue of child support, the mother stood to collect $5,000 per month in child support payments, pursuant to the Child Support Standards Act, a fact acknowledged by the agreement. Instead, she agreed to monthly child support payments of $2,500.

Paragraph 10.3 of the parties’ agreement provided for a graduated reduction in the father’s child support payments upon the emancipation of each of the three children. Upon the first emancipation his monthly payment would be reduced by $350 to $2,150 per month; and upon the second emancipation the payment would be reduced to $1,462 per month.

The agreement provide for a room and board credit at paragraph 10.4, immediately following the support reduction schedule:

During the period in which a Child is attending a college and residing away from the residences of the parties and [the father] is contributing towards the room and board expenses of that Child, [the father] shall be entitled to a credit against his child support obligations in an amount equal to the amount [the father] is paying for that Child’s room and board. The credit shall be allocated in equal monthly installments against [the father’s] child support payments.


Continue Reading Uncapped Room and Board Credit Violates Public Policy

What is the effect of a divorce settlement stipulation provision, incorporated in the judgment of divorce, that calls for a specified reduction in child support upon the emancipation of one of the children of the parties?

The fact pattern is almost routine. For example, say the parties have three children, 14, 17 and 19. Their divorce settlement tracks the C.S.S.A. Upon the first emancipation (presumably when the 19-year old turns 21, or, perhaps graduates college according to the definition of emancipation in the agreement), the stipulation provides that the child support obligation will go from $2,900 per month to $2,500 per month (tracking the reduction in the formula obligation from 29% for three children to 25% for two children). Assume the full stipulation is incorporated by reference into the parties’ divorce judgment.

Continuing the example, assume that upon the first emancipation, the child support payor in fact reduces his/her payment from $2900 to $2500, but does not have that reduction established by a new court order. A year later, the support recipient goes into court to seek 12 months of $400/per/month arrears. What happens?

Consider last month’s decision of the Appellate Division, Second Department, in Beckmann v. Bedckmann. There, the parties’ 2012 divorce judgment incorporated, but did not merge with, their 2011 stipulation of settlement. The parties had agreed that the husband would pay $700 semi-monthly in basic child support for their two children. In April 2013, the parties’ daughter became emancipated under the terms of the stipulation, and shortly thereafter, the husband reduced his child support payments from $700 to $476 semi-monthly [I am going to dangerously assume that an agreement that defined emancipation would also provide what was to happen on emancipation].


Continue Reading Divorce Settlements that Provide for Reductions in Child Support upon Emancipation

The words Welcome Home written on a old brown diary paperThe divorced couple’s child moved out of the mother’s home when he was 18, established his own residence, and began paying for all of his own expenses. Thereafter, the father’s petition to terminate his support obligations was granted.

In September 2013, the child returned to the mother’s home. The mother sought to reinstate and modify

A court will not provide for a reduction in child support upon the emancipation of the elder of two children when the parties’ divorce settlement stipulation, itself, does not provide for one. So held the Appellate Division, First Department, in its 3-2 December 29, 2015 decision in Schulman v. Miller.

That settlement stipulation required the husband to pay unallocated periodic child support for the parties’ two children, plus cost of living adjustments, as well as other expenses of each child, including education and college. It did not provide for the reduction or recalculation of the husband’s child support obligation upon the emancipation of the older child. The agreement did not allocate the husband’s child support obligation as between the children, nor provide a formula for a reduction in the event of one child’s emancipation.

Affirming the order of Supreme Court, New York County Justice Lori S. Sattler, the appellate court noted that the settlement stipulation did provide for a termination or reduction of certain of the husband’s financial obligations upon the happening of specified events, including, for example, his obligation to pay maintenance to the wife, his obligation to maintain medical insurance for each child, payments for car service, and the like. Thus, the settlement provision concerning medical insurance explicitly stated that the husband “shall have the right to terminate such coverage for either Child at the time she becomes emancipated.” The parties’ stipulation of settlement was an exhaustive, 62-page document. Both parties were represented by counsel during its negotiation (indeed, the husband himself is an experienced attorney).


Continue Reading Absent Provision in Divorce Agreement, No Reduction in Child Support on Emancipation of Elder Child

College Fund 3Should a court reinterpret a divorce settlement agreement in light of New York’s public policy? It is one thing to void a contract provision as violative of that policy. It’s another to pretend that the contract was intended to be consistent with that policy.

Take, Monroe County Supreme Court Justice Richard A. Dollinger’s recent decision in Luken v. Luken. There, the parties’ June, 2014 separation agreement provided that the couple would jointly finance the college education for their sons. At the time of the agreement the older son had completed his first year of college; the younger son was in high school. The husband was to pay 70 percent of the college cost, the wife the remaining 30 percent, up to a combined cap of $42,000. The agreement also gave the husband a college expense credit against his child support obligation:

The father shall be entitled to receive a credit against his child support for payments for college educational expenses as set forth herein.

The agreement had obligated the father to pay child support of $33,996 annually for his two sons. The amount was calculated using the $141,000 C.S.S.A. “cap,” even though the couple’s combined family income substantially exceeded that amount (the wife estimated the husband’s income at $600,000).


Continue Reading Crediting Child Support With Payments for College Expenses

OverstuffedIn contrast to its decision in Zaratzian, the subject of yesterday’s blog post, the Second Department, in Eagar v. Suchan, held the same day that a father was entitled to receive child support from a mother after their two children moved in with him.

In Eagar, the parties’ 1999 Settlement Agreement which was incorporated, but not merged into their judgment of divorce, contained separate provisions for child support and the payment of college expenses for the children. At the time, the then 7- and 5-year old sons of the parties lived with their mother.

After the parties’ two children began to reside with the father, he petitioned to terminate his child support obligation.

After a hearing, Suffolk County Support Magistrate (and former Judge) Barbara Lynaugh granted the father’s petition. She determined that the parties’ older child, then 21, was emancipated, and directed the mother to pay child support to the father for the parties’ younger child, then 19, in the sum of $344 per week. Family Court Judge Martha L. Luft denied the mother’s objections to the ruling.

The Appellate Division, Second Department affirmed. It held that Magistrate Lynaugh properly exercised her discretion when applying the Child Support Standards Act formula percentage to the combined parental income in excess of the statutory cap. “Here, the Support Magistrate properly articulated her reasons for applying the statutory percentages to parental income over the statutory cap, and her determination was not an improvident exercise of discretion.” It appears that the mother’s C.S.S.A.-adjusted annual income was approximately $105,000.00, which (applying the 17% formula) resulted in a $344.00 per week award.

The appellate court did not discuss the language of the parties’ Stipulation of Settlement, or why that language allowed for an affirmative award to the father.


Continue Reading “I’m Moving In With Daddy”: The Child Support Perspective (Part II)

Packed and Ready to GoAmong the hardest jobs of the matrimonial lawyer is to draft divorce settlement agreements that anticipate post-divorce events and then resolve them with precision. Two May 20, 2015 decisions of the Second Department highlight just how hard those jobs can be when it comes dealing with the child who switches his or her primary residence.

In Zaratzian v. Abadir, the appellate court affirmed a decision of Westchester County Supreme Court Justice John P. Colangelo that applied one couple’s Agreement to resolve their conflict in a manner neither party may have wanted.

Under their 2006 divorce settlement Agreement, the parties, both medical doctors, agreed to equally-shared time with their three children, and older daughter, then age 12, and 10 and 6-year old sons. Following the father’s remarriage in 2008 and the pregnancy of his new wife, the time-sharing arrangement broke down. The daughter resided only with the mother, the older son with the father and the younger son continuing to switch. Subsequent Family Court custody proceedings resulted in both boys living with their father.

Under the Separation Agreement, the father had agreed to pay the mother $1,500 per month in maintenance until the emancipation of one of the children. Until then, the father would pay an additional $1,500 per month in child support for all three unemancipated children. Upon the emancipation of one child, maintenance would stop, but child support would be increased to $1,750 per month. Upon the second emancipation, child support would be reduced to $1,000 per month.

The support Article of the Agreement contained the following typewritten provision:

Both parties agree to be bound by the provisions set forth in this Article III and each party agrees that neither party shall at any time make any application to modify the financial provisions of this Article III or the financial provisions of the divorce decree subsequently entered between the parties.

The Agreement defined various emancipation events, including:

Permanent residence away from the residence of the Father and the Mother. A residence at boarding school, camp, or college is not to be deemed a residence away from the residence of the Wife, and hence, such a residence at boarding school, camp, or college is not an emancipation event.

The emancipation Article also contained the following handwritten provision:

Notwithstanding any other term or provision contained in this agreement, in the event one or more of the children reside primarily with the Father, he shall be permitted to make any application he deems appropriate to modify his child support obligation as set forth in Article III and the resulting order shall supercede the terms of this agreement.

Following the Family Court proceedings, the mother moved in Supreme Court for an order relating to the payment of private school tuition for the daughter (she later asked for child support for the daughter computed under the Child Support Standards Act). The father cross-moved for an order requiring the mother to pay him C.S.S.A.-computed child support for the parties’ two sons.


Continue Reading "I'm Moving In With Daddy": The Child Support Perspective (Part I)

Knight1All hail Sir Richard of Rochester! Chivalry is not dead.

Although opening his January 17, 2015 opinion in Cornell v. Cornell with “Sticks and stones will break my bones, But words will never harm me,” Monroe County Acting Supreme Court Justice Richard A. Dollinger nevertheless held that vile words to a child support-paying mother from her college-aged son were not to be tolerated.

As Justice Dollinger summarized, this case tested whether a son who engaged in vile disparagement of his mother, may strip his father of his right to claim support, including payment of college expenses. The Court held that it did.

No one should be permitted to refer to their mother in such fashion, and then, without recanting or asking for forgiveness, seek the court’s assistance to have that person support their future life. This court will not condone such actions by an unworthy son.

In his motion papers before the Court, the father sought child support from the mother and payment for college expenses. The mother argued that her obligations to pay any support – including the cost of college education – were obviated because of the child’s calculated estrangement from her. She claimed that her son described her as a “douche bag” and an “asshole,” and that this, among other behavior, has caused alienation between her and the son.


Continue Reading Do You Kiss Your Mother With That Mouth?