Child Support

CHILD SUPPORT

"Child support" is money one parent pays the other to help financially support a child. Child support includes expenses like the child’s health insurance and medical costs, educational expenses, and even child care while the custodial parent is at work or school. Usually, the parent who spends less time with the child makes payments to the other parent. The amount of child support is based on the income of both parents, however, any order for child support takes into account what each parent can provide.

Child Support Standards Act (CSSA)

Generally, the court determines the amount of child support based on both parents’ income per year and the number of children for whom the parents are responsible. If the parents’ combined income is $143,000 or less (the amount is revised every two years), the court follows a simple formula that is explained below. If the combined income is more than $143,000, the court could use the same formula for all income or just up to $143,000. See section below.

In applying the formula to come up with a basic child support obligation, the court adds the income of both parents and multiplies it by the appropriate child support percentage (based on the number of children). Your income for purposes of this calculation is your "gross income as was or should have been reported on the most recent federal income tax return." There are required deductions from gross income like alimony, public assistance, supplemental security, and New York City and Yonkers income taxes paid.

As an example, let’s say you have the majority of physical custody of your one child and you make $20,000, while the other parent makes $30,000. After adding your incomes ($50,000), the court multiples that total by a percentage per child, or “child support percentage.” These percentages are:
•17% of the combined parental income for one child,
•25% of the combined parental income for two children,
•29% of the combined parental income for three children,
•31% of the combined parental income for four children, and
•no less than 35% of the combined parental income for five or more children.

In our example, the court would multiply $50,000 x .17 = $8,500. That product ($8,500) is the basic child support obligation. You would be responsible for 40% of that figure ($3,400) because your income ($20,000) makes up 40% of the combined parental income ($50,000). The other parent would be obligated to pay 60% ($5,100). This means that the other parent would have to make payments to you over the course of the year that add up to $5,100. Because you have physical custody most of the time, the court will presume that you are spending your share directly on your child’s expenses.

Combined Income More Than $143,000

If the combined parental income is more than $143,000 per year, the court has a choice. It could use the same formula as above for all of the combined income. Or, the court could use the formula for only the first $143,000 of combined income, and then decide how much (if any) of the remainder to award by considering these factors:
•the financial resources of the child and each parent
•the child’s physical and emotional health and any special needs and aptitudes 
•the standard of living the child would  have enjoyed if not for the divorce
•the tax consequences to each spouse
•the non-monetary contributions that the parents will make toward the care and well-being of the child
•the educational needs of either parent
•whether one parent’s gross income is substantially less than the other parent's gross income, and
•the needs of any other children of the non-custodial parent for whom that parent is providing support. (This factor may be considered only if the other children are not the subjects of the instant action and their support has not been deducted from the parent’s income.)
•provided that the child is not on public assistance,
(i) extraordinary expenses incurred by the non-custodial parent in exercising visitation, or
(ii) expenses incurred by the non-custodial parent in extended visitation provided that the custodial parent's expenses are substantially reduced as a result thereof; and
•any other factors the court determines are relevant.
[Domestic Relations Law § 240 and Family Court Act § 413].

Child Support Under Separation Agreement

If the parents have already worked out a plan for child support in our separation agreement, that can be used instead of the guidelines. You both can waive the basic child support obligations as long as the waiver is in writing, states what the basic child support obligation would have been, and states the reasons why your agreement should be adopted instead. Your agreement must also recite that you have been advised of Domestic Relations Law § 240 (1-b) and Family Court Act § 413(1)(b) and that the basic child support obligation would presumptively result in the correct amount of child support to be awarded. The reason for this is to assure that the parties are aware of their rights and obligations under the law and knowingly waive such rights. This provision may not be waived by either party or counsel. In other words, both parents must agree to opt out of the child support guidelines. And even when there’s an agreement, it’s not valid until approved by the court.

Additional Obligations

In addition to the basic support award, the child support order must include medical support, which means health insurance and payments for any out-of-pocket medical expenses for the child. Either parent may be required to provide health insurance coverage for the child, if it is available at a reasonable cost. The basic award may be increased to include a prorated share of child care expenses, if the custodial parent is working or in school. In addition, the court may increase the award to include a prorated share of educational expenses for the child.

Modification

If the non-custodial parent subsequently earns more (or less) now, his/her child support obligation can increase (or decrease). There are two basic approaches to upward modification of child support. The first method is only available to custodial parents who receive services of the NY Support Collection Unit (SCU). If the custodial parent receives child support through SCU, the non-custodial parent may be required to pay a cost of living adjustment (COLA), equal to approximately 10% of the existing obligation, added to it. Either parent may file objections to the COLA adjustment, which causes a Family Court hearing to be held to determine a new child support obligation employing the percentage of income method of the CSSA, if the court believes this adjustment to be “appropriate.”

The other method by which child support is modified--upward or downward--is by petitioning the court.  Effective October 13, 2010, under the "Low Income Support Obligation and Performance Improvement Act," the court may modify child support where
(1) three years have passed since the order was entered, last modified or adjusted; or
(2) there has been a change in either party's gross income of at least 15%.

However, a party claiming a reduction in income must show that it was involuntary and he/she has made diligent efforts to secure employment.  If less than three years has passed or there has not been a 15% change in income, the court is nevertheless empowered to modify child support based on a substantial change of circumstances. 
[Domestic Relations Law §236(B)(9)(b)(2) and Family Court Act §451(2)]

Emancipated Child

In New York State, a parent must financially support a child until the child is 21 years old or becomes "emancipated." When a child is emancipated, it means that the child no longer lives with the parents AND is self-supporting. If the child remains financially dependent on a parent, that child is not emancipated. A child who was once emancipated can become dependent again on the parents before turning 21 years of age.
In general, a child under 21 is emancipated if:
•The child is married.
•The child is in the military.
•The child finished 4 years of college.
•The child is 18 years old and working full-time (summer or vacation jobs don't count).
•The child permanently leaves home and ended the relationship with both parents for no valid reason (except if the child left home because of abuse by a parent or a similar reason).


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