New York State Child Support Modification Laws

Courts in New York State generally require a change in relative financial condition between parents to modify child support payments. In particular, if filing bankruptcy under Chapter 13, the bankruptcy court requires all disposable income (above a near poverty existence) to be paid into the plan. However, New York State child support modification laws do not require the State Family court Judge to accept this disposable income determination, and may increase child support payments. In the event of a state increase, a motion to modify payments required by the Bankruptcy Court would be required to realign payments to creditors.

Recent changes in New York State child support modification laws

Abellard v. Aime, 2005 N.Y. Slip Op. 04034 (New York Appellate Division, Second Department, May 16, 2005): Financial assistance received by a father from his father, as loans which bore interest and must be repaid, was includable in the noncustodial father’s income. Specifically, the court considered past loans as an additional for of income which increased the father's future monthly child support payments.

The US Bankruptcy Code generously incorporates New York State statutory laws into the administration of Chapter 7 liquidation, Chapter 13 plans, and Chapter 11 reorganization cases. The application of State Law in Federal Court is essential for resolving legal issues pertaining to the ownership of property, debtor and creditor rights, employment law and employee rights, enforcement of judgments, determinations of liability, family obligations, and many more individual rights when dealing with large corporations. Each year, as the State Legislature in Albany enacts new statutes, or amends existing statutes, the ripple effect impacts all New York citizens' rights in Federal Bankruptcy Court.

Changes in New York State statutory law often cause a significant effect upon administration of bankruptcy cases and court's determination of assets that are potential subject to forfeiture. Similarly, the dischargeability of debts is often affected based upon authorized lending requirements. For instance:

• A bankruptcy lawyer in New York City recently claimed NY bankruptcy exemptions amendments allow debtors to retain the cash value of a life insurance policies, based upon the legislatures redefinition that restricted access.
• When filing bankruptcy in New York State, under previous Chapter 7 bankruptcy laws, New York federal judges were allowed wider discretion to permit discharge. However, the United States Bankruptcy Court Western District of New York began limiting qualification for Chapter 7 based on New York State bankruptcy law that would become effective 6 months in the future.
• The Southern District of New York Bankruptcy Court adopted the New York State bankruptcy practice traditions used statewide, in response to a recent State Law amendment changing rent control laws.
• The Bankruptcy Court, Western District of New York and the Southern District of New York Bankruptcy Court both acknowledged the Abuse Prevention Act of 2005, and began incorporating changes in New York bankruptcy law almost immediately.
• New York bankruptcy court local rules generally provide an alternative means for paying filing fees, yet using this options requires an additional application, subject to approval, that the bankruptcy court, New York Divisions may reject subsequently and render the automatic stay invalid.

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