Divorce Lawyers New York - Recent Family Law Decisons (51)
RECENT FAMILY LAW DECISIONS (51)
Retroactivity
A trial court has no authority to retroactively modify a child support order.
Need
In General
The trial court may presume that the expenses associated with the raising of children are increased each year.
Child support is to be determined by accommodating the needs of the children with the available means of the parties. It is incumbent upon the trial court to consider both the needs of the children and the ability of the former spouses to pay.
Ability to Pay
Child support obligations may be increased pursuant to this section based upon the supporting parent’s increased ability to pay regardless of whether the child’s needs have also increased.
The financial status of a divorced parent’s current spouse should not be considered in determining the ability of that spouse to fulfill his or her duty to support.
In assessing the children’s increased needs, it is proper to consider that they have grown older and that the cost of living has risen, but this must be balanced against the relative ability of the parents to provide for the children.
Child support payments must necessarily reflect a balance of the intensity of the child’s needs with the ability of the parents to provide for that need.
Trial court abused its discretion in strictly adhering to the formula set out in the property settlement regarding child support payments based upon ex-husband’s income where his income increased significantly, so as to double to the amount of child support, and that a hearing should be held to determine the child’s actual amount and ex-wife’s increased ability to support the child.
Evidence
Once the respondent’s increased ability to pay has been demonstrated, the petitioner may establish increased needs of the children based on the fact that the children have grown older and the cost of living has risen.
Where the supporting parent’s ability to pay is shown, the fact that the child has grown older and the fact that the cost of living has risen are proper bases for establishing increased need.
In Excess
Where the noncustodial parent has ability to pay support in excess of the stated needs of the child, the court may order child support in excess of the needs to enable the child to enjoy the standard of living he would have had if the marriage had not been dissolved.
