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Recalculation of Child Support Upon Emancipation of Eldest Child


Date: 2016-02-05

The New York Appellate Division, First Department recently held in Schulman v. Miller, 2015 Slip Op 09603 (December 29, 2015) that the payor of child support cannot automatically receive a reduction in child support upon emancipation of a child unless there is a provision in the parties marital stipulation of settlement.  In this case, the parties’ agreement defined “emancipation” as one of six events, including attaining the age of 21 or the age of 22 if the child was enrolled full time as a college student. The Father moved for an order declaring that the eldest child was emancipated at 21 because the child was no longer a “full time” student and for an order reducing his child support obligation.  The court held that the father is free to file a motion for a downward modification of his child support upon a proper showing, however, the court will not re-write the parties agreement. The parties’ agreement provided that Husband was to pay monthly child support, plus cost of living adjustments. The agreement did not provide for the reduction or recalculation of child support upon the emancipation of the eldest child.  The First Department cites Lamassa v. Lamassa 106 AD 3d 957, 959 (2d Dept. 2013), wherein the court held that “when child support has been ordered for more than one child, the emancipation of the oldest child does not automatically reduce the amount of support owed under an order of support for multiple children.”

What this case is saying is that the if there is more than one child and the payor is paying child support pursuant to a court order, at the time one or more of the children are emancipated, the court will not automatically reduce child support based on the fact that there are less children and the child support percentage changes. Instead, the payor has to make an application for a downward modification and prove their income. In essence, the court reviews child support de novo

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