New York Divorce Law Blog : New York Divorce Lawyer & Attorney : Law Offices of David A. Gabay, PC : Serving New York City, Long Island, Suffolk County, Nassau County

One question which arises frequently in my practice is whether a non-custodial parent can terminate his or her child support obligations by ‘signing away’ his or her ‘rights’ to the child.  How and why a parent gets to the point of seriously considering abandoning their own child is an issue for another day, but the answer to the question is (like almost anything else in New York family law) yes….and no.

1.       Child support is a legal obligation each parent owes directly to a child, and cannot normally be bargained away by the parents.

2.      Visitation and custody rights are separate from the duty of a parent to support their children, so surrendering custody or waiving visitation will never directly affect the payment of child support.

That being said, there are two (2) ways for a non-custodial parent to voluntarily terminate his or child support payments:

1.      Under certain limited circumstances, a judge may approve of a waiver of child support payments for ‘good cause’ and the custodial parent consents to the waiver.

What constitutes ‘good cause’ is a question only the judge assigned to the case can answer, and in my experience each judge has his or her own practices and criteria for deciding whether to approve a waiver request.

2.      Adoption of the child by a step parent or other appropriate person. If the parent paying child support consents to the adoption of the child by another adult (usually the new step-parent of the child), the completion of the adoption automatically terminates the child support obligation of the former parent.

For more information on child support and other New York divorce and family law subjects or to discuss your own questions or case, please visit my website at www.GabayLawFirm.com

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 In 2008, the IRS amended Code Section 152(e), which addresses child dependency exemptions.  The changes affect the procedures and means for claiming the exemption. The new rules should be carefully followed to ensure that the exemption is taken by the parent entitled to it, and that the appropriate language is contained in divorce or separation agreements to reflect the current state of the law.

1. A divorce agreement or court order can no longer be used as a substitute for Form 8332.  The parties must actually complete the form.
2. Beginning in 2009, the custodial parent is the one with whom the child resides the greater number of nights during the year, regardless of the terms of the divorce decree. 
3. Beginning in 2009, the custodial parent can unilaterally revoke the release of a child exemption for calendar years 2009 and beyond regardless of when the release was made.

In light of these developments, all non-custodial parents who plan to claim the exemption must obtain a signed Form 8332. In addition, divorce or separation agreements should address the potential for a release being improperly revoked after it is given. 

The parent claiming a dependency exemption is also entitled to benefit from a Child Tax Credit and any allowable Hope or LIfetime Learning Educational Tax Credits.  Keep in mind that the exemptions and credits are phased out as the income of the parent increases.  This should be factored into decisions as to when and how to claim the exemption.

For 2009, the Chidl Tax Credit phases out from $75,000.00 to $95,000.00 (of Adjusted Gross Income) and Hope or Lifetime Learning Educational Tax Credits phase out from $48,000.00 to $58,000.00 for single and head of household filers. These credits are generally more valuable to lower and middle income filers than the dependency exemption itself.

As with all tax issues in a divorce or separation agreement, you should consult an experienced tax attorney or accountant in order to full understand all of the ramifications of your agreement.

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Daniel Clement’s blog has an interesting item regarding a new medical insurance disclosure requirement for New York state divorce agreements and judgments. The law mandates that all divorce settlement agreements contain specific language advising the parties that they may lose their health insurance as a result of the entry of a judgment of divorce.  The law requires the Court to ensure that the statutory language is contained in the agreement. The law takes effect on November 1, 2007.

This new law is, in my opinion, completely unnecessary and will do nothing but cause confusion and delay in the resolution of divorce actions for several months while the Courts and matrimonial attorneys update their forms and procedures to accommodate the additional language. 

In my experience, I have never had a cause where a party was unaware that he or she would lose his or her health insurance after a divorce was finalized. In fact, for many of my clients the questions surrounding the loss and cost of health insurance after a divorce were a major point of negotiation and contention.

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Owing child support arrears may affect your ability to get a passport to travel abroad. The United States Department of State’s rules and regulations require that a passport application be denied if the applicant is in arrears on his or child support payments. Arrears in excess of $2,500.00 will result in the denial of a passport, and that threshold can drop to as low as $1 depending on the state in which the applicant resides. 

The limit for New York residents is the federal limit of $2,500.00.

If your application is denied because of child support arrears, the only way to address this issue is to reduce the arrears to an acceptable level. Once that is accomplished, your state child support agency will notify the federal government (the Department of Health and Human Services). The State Department advises passport applicants that they will need approximately 5-10 business days from the date the arrears are reduced for your name to be removed from the list of person to be denied a passport.

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