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Bitic v Bitic


2017 NY Slip Op 01529

March 1, 2017

The appellate court affirms the judgment.

The plaintiff filed for divorce after 11 years of marriage in 2010. They had two children between them. In 2012, the parties stipulated that the plaintiff would have sole custody of the children, and the defendant would pay child support. If calculated pursuant to the Child Support Standards Act (Domestic Relations Law 240 [1-b]), it would come out to less than the presumptive award.

Two months later, the plaintiff moved to vacate the child support award for failure to comply. The Supreme Court denied the plaintiff’s motion. The final judgement for divorce was entered on 1/7/15.

The plaintiff brings this appeal.

When parties enter into a stipulation agreement, they are able to “opt out” provided their choice is made “knowingly” (Rockitter v. Rockitter 113 AD3d 745; 746; Matter of Doroskey v. Herald 52 AD3d 829, 830; Colucci v. Colucci 54 AD3d 710,712.

The Domestic Relations Law 240 (1-b)(h) requires that the stipulation must provide that the parties are informed of CSSA and that the child support decided on would be correct. If the stipulation is not in keeping with the basic child support obligation, it must set out what the correct amount should have been (Domestic Relations Law 240 [1-b][h]; Rockitter v. Rockitter 113 AD 746.

Here, the Supreme Court determined that the stipulated support provisions were correct. The oral agreement did indeed to comply with the Domestic Relations Law 240 (1-b)(h) except that it didn’t set out the actual amount of child support. Rather, it mentioned the parties had agreed after being informed of the implications. The decision not to comply with CSSA was made knowingly and in consideration of the distribution of marital property.

The plaintiff clearly stated that she understood the terms of the stipulation and had discussed them with her lawyer. In the supporting documentation, the parties had included their tax information to support their calculations, which satisfied the statutory requirement. The decision to enter into the agreement as made with a full understanding of the consequences (Rockitter v. Rockitter 113 AD3d; Blaike v. Mortner 274 AD2d 95, 101).

Generally under New York law, both parents are responsible for supporting their children until they turn 21 years old (this also includes providing health insurance coverage).

If the child enters the military, becomes self-supporting, becomes emancipated or is married before the age of 21, the parent is no longer responsible for providing child support.

Under normal circumstances, the custodial parent is to receive financial help from the noncustodial parent for the purposes of caring for the child. If a couple has a child between them but were never married, an acknowledgment of paternity must be filed first.

It is important to note that the custodial parent should receive child support, even if they are financially able to care for the child themselves.

How much child support should be received is determined primarily through the Child Support Standards Act. The judge will consider the income of the parties, figure in various deductions, and then factor in how many children are involved. The state percentages are as follows:

1 Child 17%

2 Children 25%

3 Children 29%

4 Children 31%

5 Children 35%

Generally couples prove their income by providing the court with income tax returns and/or pay stubs. Keep in mind that the judge always has the discretion to set the child support amount at a higher or lower amount as they see fit.

It is important to note that in October of 2002, New York passed a law which requires parents to secure health insurance coverage for their minor children (provided it is of reasonable cost and reasonably assessable). If both parents have access to health insurance, the judge will determine which plan will most benefit the child based on their particular needs, cost, availability of services, etc.

Divorce proceedings and all that goes with it is stressful and emotional. It is important that you have someone on your side, protecting your interests. Contact Stephen Bilkis and Associates for guidance and a free consultation. They have office locations throughout New York for your convenience, including locations Manhattan, the Bronx, Brooklyn, Queens, Staten Island, Nassau County, Suffolk County and Westchester County. Call them today at 1-800-NYNYLaw.

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