A recent upstate case highlights that to receive a reduction to your income for child support calculation purposes for child support due for a prior child...YOU MUST PAY IT.
Assume that the Father was married and is divorced/separated and has his first child (Child "A"). In addition, the Father has since had a second child (Child "B") with a different mother. The second mother files for child support for Child B.
It is fairly common knowledge that in calculating a parent's child support obligation there are certain statutory deductions for example social security tax payments and court ordered or contractual child support and/or spousal support. Often a parent facing a new child support case for a different child will set forth that they are already obligated by court order or stipulation to pay child support to the parent of the other child and will provide proof of the order or stipulation. Upon proper proof the paying parent's income is reduced when calculating child support for the second child.
In most instances the parties themselves know if the parent with the obligation is actually paying support for Child A. However, in this recent case the following occurred:
1. The Father provided proof of a court order to pay his Wife (he never divorced) child support and spousal support.
2. The Father and his Wife obtained the support orders just after Child B was born.
3. The Father provided no proof that he actually paid child support or spousal support to the Wife. In addition, the Father did not have the Wife testify that she received payments. Finally, there were no documents such as bank statements, checks, money orders or other proof of payment to the Wife.
The Family Court did not credit the Father with any of the obligations for Child A nor the spousal support due to a failure of proof even though there was a valid existing support order.
Over the years I have seen situations where a spouse has an out of wedlock child and then has his wife obtain a support order even though they are living together with the belief that it will lower the payments due the new mother. The courts are aware of this type of strategy and when payment of support is questioned it must be supported with proper testimony and/or proof to be entitled to the income reduction for support calculation purposes.