If DNA Shows You’re Not The Parent, Can You Be Reimbursed For Child Support?

Can you get a “refund” if the child that you’ve been supporting turns out not actually to be yours? More often than you might think, family law attorneys in Rochester are asked this question.

If you learn that the child you’ve been supporting is not yours, submitting some DNA results to a New York family court may not always be enough to release from the court’s child support order.

WHAT IS ALWAYS A FAMILY COURT’S LEADING PRIORITY?

That’s because in legal matters that involve children, the courts in New York make the child’s best interests their top priority.

You may have all of the facts and evidence lined up to make your case persuasively, and a good family lawyer can ensure that you are treated fairly, but your own interests will not be the court’s highest priority.

In the state of New York, if you are paying court-ordered child support, and if you want a DNA test to confirm or deny paternity, that request must be made to the court. If a DNA test proves that you are not the child’s biological father, a child support order isn’t automatically terminated.

WILL YOU NEED A FAMILY LAW ATTORNEY?

Instead, a hearing will be scheduled, and a family court judge will make a determination that is in the best interests of the child.

And in some cases, what is in the child’s best interests may require you to continue making child support payments, at least temporarily, even though you know you are not the biological father.

In any paternity matter or child support dispute in the Rochester area or anywhere in western New York State, you’ll need to be advised and represented by an experienced family law attorney.

WHAT IS AN “ACKNOWLEDGMENT OF PATERNITY” IN NEW YORK?

Under New York law, when a child’s parents are not married, legal paternity is established when the child’s presumptive father voluntarily signs an Acknowledgment of Paternity form.

The Acknowledgment of Paternity form strongly warns presumptive fathers, “DO NOT sign an Acknowledgment of Paternity if, after reading this written notice and receiving oral notice, you have any doubts about the child’s paternity.”

Nevertheless, and for a variety of reasons, this warning is often overlooked or ignored, and a man becomes the legal father of a child that is not in fact biologically his own.

An Acknowledgment of Paternity that has been signed voluntarily by both parents is legally binding in the state of New York and establishes the lawful obligation of both parents to support the child financially.

CAN YOU CANCEL AN ACKNOWLEDGMENT OF PATERNITY?

Let’s say that after signing an Acknowledgment of Paternity, you learn that you are not, in fact, the child’s biological father. Is there any way that you can withdraw your Acknowledgment of Paternity after you’ve signed it?

If you are 18 years of age or older when you sign an Acknowledgment of Paternity form, you may withdraw it at any time within the first sixty days after you signed it.

If you sign an Acknowledgment of Paternity form and you are under the age of 18, you may withdraw it up to sixty days after your 18th birthday.

After those deadlines expire, anyone who has signed an Acknowledgment of Paternity may challenge it in court only if he or she signed the document while under duress or intimidation or on the basis of fraud or factual error.

HOW IS AN ACKNOWLEDGMENT OF PATERNITY VACATED?

The burden of proof falls on the party who wishes to withdraw the Acknowledgment of Paternity. If you’re in western New York, you’ll need to be represented by a reputable family law attorney.

If a New York family court judge determines that the man who signed the Acknowledgment of Paternity is not, in fact, the biological father of the child, the Acknowledgment of Paternity – but not, at that point, the child support order – may be vacated.

The court will send a copy of the order vacating the Acknowledgment of Paternity to the state’s Putative Father Registry and to the state’s child support enforcement unit if a child’s parent is receiving any child support services.

WHAT DOES IT MEAN TO SIGN AN ACKNOWLEDGMENT OF PATERNITY?

To answer our first question – can you “get a refund” if you’ve paid child support for a child who is not yours? – that answer is no, because when you made those payments, you were meeting a legal obligation that you accepted when you signed an Acknowledgment of Paternity.

In any event, as mentioned previously, the child’s best interests will always be a New York family court’s top priority.

Can you have the child support order dropped if you acquire proof that you are not the biological father, and that proof was not available when the child support order was first issued? Possibly, but you will need help from a knowledgeable and experienced family attorney.

WHAT IS THE COURT’S VIEW OF PATERNITY ACKNOWLEDGMENTS?

However, any man in this situation needs to understand the court’s perspective. When you signed a paternity acknowledgment, a father-child relationship was legally established. Even if it seems unfair, the child’s best interests, and not yours, will be the court’s chief concern.

If you can show that you were intimidated, coerced, lied to, or tricked in some way into signing a paternity acknowledgment, it will strengthen your case, but there is no guarantee that the state of New York will release you from your child support obligation before the child’s 18th birthday.

Of course, men can avoid this kind of legal problem almost entirely with some foreknowledge. The key is to have reliable DNA testing conducted before and not after you sign an Acknowledgment of Paternity.

HOW CAN A FAMILY LAWYER HELP YOU?

But if you’ve learned – or if you believe – that you are paying child support for a child who is not yours, discuss your circumstances, rights, options, and alternatives as quickly as possible with a skilled New York family law attorney.

You’ll learn where you stand legally and how the law applies to your personal situation. Your attorney will recommend the best way to move forward. If you want to stop making child support payments, you’ll need a lawyer who can present a powerful case on your behalf.

If you are being unfairly forced to pay for a child who is not yours, having a good attorney’s advice is the first step, and it is your legal right.

Can A Divorce Affect Your Taxes?

There are many things that can create big changes on your annual tax filing. Divorce is one of them.

Not only can marriage and divorce affect your taxes, but changes in the laws as they relate to divorce can also create issues as well.

Alimony and child support, as you expect, can affect your filings. Alimony payments can be deducted by the payer, even if you don’t itemize each year. This will still allow for a reduced taxable income. For those who receive alimony payments, they must include this as their own taxable income. Keep in mind that there have been changes in spousal support taxes as part of the Tax Cuts and Job Act in 2017, so you’ll need to pay close attention to those changes and how they affect your taxes each year. One of the biggest tax changes after 2018 is that alimony will no longer be deductible or taxable to the payer or the one who receives alimony payments.

Child support is part of the process for a majority of divorces. It has not been deductible or taxable for quite some time, and it remains true today. In other words, there’s no law that requires you to report it on tax returns. Be sure you and your former spouse are on the same page in terms of who claims your children on annual tax filings. This could create problems if you both claim the same dependents.

Did you know that changing your name could create a delay in your tax returns? Part of this delay could be a result of delays at the Social Security Administration, which is where you officially change your name. Either way, it can delay refunds. Another way to delay your refund is changing your marital status. Again, it goes back to ensuring the changes are recorded at the Social Security Administration.

The new tax laws have meant other big changes in marital and divorce relations.

Let’s say you remarried in 2017 and learned later your spouse has a significant amount of past due child support that’s owed to their children. The IRS might divert this refund to his or her children to pay down the past due amount. That doesn’t mean it has to affect you, however. You can file for injured spouse relief. This means the IRS will allow you to receive your portion of the refund based on your tax returns, while the remaining amount goes towards back child support.

In the past, equitable relief allowed for someone to delay their filing up to two years if they were unable to file on time due to what the IRS calls “difficult or intimidating situations.” An example might be domestic abuse. That two-year limitation has been lifted.

Finally, if you think you were owed more after your marriage or your divorce because you were unaware of what was being filed, you can now go back several years and have the numbers recalculated. It’s called Innocent Spouse Relief. Innocent spouse relief, separation of liability and equitable relief, outlined above, are the three ways in which this change can be used. You’ll want to discuss these possibilities with your divorce attorney.

For more information, speak to our divorce lawyers now.

Can SSDI/SSI Affect the Calculation of Child Support?

Wondering how Supplemental Security Income (SSI) or Social Security Disability Insurance (SSDI) can affect the calculation of child support payments?

It is very important to first understand what these two particular programs are and what they do.

Social Security Income

Social Security Income (SSI) is administered by the Social Security Administration and provides cash payments each month those who the government deems as low-income elderly or disabled, and who have few assets. For children who are receiving benefits from SSI, the benefits are reduced by two-thirds of the amount that child support covers.

Social Security Disability Insurance

Social Security Disability Insurance (SSDI) is also a program administered by the Social Security Administration. This program provides cash benefits each month to those who are disabled and their families. The difference is that with the Social Security Disability Insurance program, there is a history of significant employment. That measurement is generally a verifiable work history of at least five of the previous ten years. The second difference is that assets are not considered for SSDI.

The Differences Between SSI And SSDI And How It Affects Child Support Payments

If you are the non-custodial parent who receives SSI, your child support payments will not take into consideration your SSI income. Further, if you are the custodial parent and you receive SSI, you do not have to report it as countable income.

If you are the non-custodial parent who receives SSDI, your child support payments will be taken into consideration your SSI income. As required under the DC Child Support Guidelines, SSDI is counted as income when calculating the monthly child support order.

If your child receives SSDI derivative benefits, you should know it counts as income for the parent from where the money is derived. If the benefits come from the non-custodial parent, the total of the benefits are deducted from the obligation using a calculation formulated by the state of New York.

Consider this example as a guide:

The benefit total is $300

Using the guidelines, the obligation is calculated at $500

The order would be set at $200

Note that if the benefits are more than the obligation, the order is zero.

Finally, you should know that if you are behind in your child support payments, your SSI benefits cannot be garnished. If you receive SSDI and you are behind in your child support payments, those benefits can and often are garnished.

Please keep in mind that each program has its own rules, waiting periods, formulas and other elements that affect the program and the recipients. Your best bet is to speak with a qualified family law attorney. Your child support lawyer can provide important insight as it relates to your divorce and the subsequent child support you pay or receive for the benefit of your minor children. If a parent is receiving disability payments for an injury or illness from which he or she will not recover, attention to an estate plan and a final will be time well spent.

For more information, speak to our child support attorneys now.

Can’t Afford Child Support? Here’s What to Do

Child support is a top priority for most parents. But what happens when the bottom falls out and you are unable to make your payments?

As is the case with most issues, your best first move is to make contact with the custodial parent, explain the situation and try to open a dialogue between the two of you. If, say, your job has been terminated, or perhaps you are preparing to relocate to a new job, discuss the facts openly and honestly. There is a good chance you can work with the custodial parent and come to an agreement without having to modify your original agreement or appear before a judge. You will want to memorialize any temporary shift, including how and when you will pay any back-child support that begins to accumulate.

If there are uncertainties surrounding when you will be able to pick up the pieces, there are some options for addressing that. Ideally, these options will include working with the custodial parent in order to keep both your communication and visitation in place. In a best-case scenario, your children would never know of a temporary setback that either parent may face. Life happens. Even the best and carefully planned moves can backfire or fall short.

If your financial situation changes, and you are unsure of how long it will be that way, you may ask the court, via a petition, to modify your child support payments. Keep in mind, you will need to provide proof that what you say is true. If, say, you lost your job unexpectedly and ideally through no fault of your own, you will want to submit that documentation with your petition.

Also, you will need to file the petition and any supporting documentation with the same court that ordered your payments initially. Note that the court is the only entity that can change what you owe, regardless of your relationship with the other parent, payments you might have missed before, or payments that were reduced for any reason. Again, honesty counts.

Of course, for some custodial parents, depending on the noncustodial parent has been iffy at best over the years. If you’re the custodial parent and you learn that the noncustodial parent has lost his or her job or is repeating past decision-making patterns, you may wonder if there are other options.

In these instances, contacting the child support lawyer who handled your divorce and/or custody issues might be your best bet. There are options and plans of actions that can be taken if a noncustodial parent simply does not take his or her child support obligations seriously. Their wages can be garnished, their tax refunds can be rerouted and in some drastic cases, he or she can spend up to six months in jail for nonpayment.

In most cases, when a parent hits a bump in the road, it’s temporary and once the problem is resolved, the parent makes it top priority to ensure any past due child support is paid immediately and then picks up the pieces and moves forward,allowing both parents continue to make strong decisions for their children.

For more information, speak to a child support attorney today.