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How child support is determined
In New York, both parties are responsible for the financial support of their children under the Child Support Standards Act (CSSA) which support is determined through the application of a formula applied to the parties' respective incomes and numerous discretionary factors which are considered. It is a child's right to receive support.
We approach this often challenging issue with the same level of detail and knowledge as to the specific facts and factors present in each case, the applicable law and supporting case law, and the means by which the Court applies all of the foregoing to determine child support.
DRL §236 (B) (5-a):
A.Section 236B of the Domestic Relations Law provides for formulas to calculate temporary and post-divorce maintenance.
B.Under the legislation, in determining temporary and post-divorce maintenance where the payor will be the recipient of child support or where there are no children requiring support, the temporary or post-divorce maintenance award is calculated based upon the lower
of :
1) 30% of the payor's income up to and including the cap of $192,000 minus 20% of the payee's income or 2) 40% of the combined sum of the payor's income up to the income cap of $192,000 and the payee's income, minus the payee's income.
Under said legislation, in determining post-divorce maintenance where the payor will be paying child support to the payee, the post-divorce maintenance would be calculated based upon the lower of :
1) 20% of the payor's income up to and including the cap of $192,000 minus 25% of the payee's income or 2) 40% of the combined sum of the payor's income up to the income cap of $192,000 and the payee's income, minus the payee's income.
The result of the calculation of said formulas is the annual amount for any presumptive award of maintenance up to the income cap of $192,000, unless the Court finds the amount to be unjust and inappropriate after considering one or more of the following factors:
The age and health of the parties;
The present or future earning capacity of the parties, including a history of limited participation in the workforce;
The need of one party to incur education or training expenses;
The termination of a child support award before the termination of the maintenance award when the calculation of maintenance was based upon child support being awarded which resulted in a maintenance award lower than it would have been had child support not been awarded;
The wasteful dissipation of marital property, including transfers or encumbrances made in contemplation of a matrimonial action without fair consideration;
The existence and duration of a pre-marital joint household or a pre-divorce separate household;
Acts by one party against another that have inhibited or continue to inhibit a party's earning capacity or ability to obtain meaningful employment. Such acts include but are not limited to acts of domestic violence as provided in section four hundred fifty-nine-a of the Social Services Law;
The availability and cost of medical insurance for the parties;
The care of children or stepchildren, disabled adult children or stepchildren, elderly parents or in-laws provided during the marriage that inhibits a party's earning capacity;
The tax consequences to each party;
The standard of living of the parties established during the marriage;
The reduced or lost earning capacity of the payee as a result of having forgone or delayed education, training, employment or career opportunities during the marriage;
The reduced or lost earning capacity of the payee as a result of having forgone or delayed education, training, employment or career opportunities during the marriage; The equitable distribution of marital property and the income or imputed income on the assets so distributed;
The contributions and services of the payee as a spouse, parent, wage earner and homemaker and to the career or career potential of the other party; and
Any other factor which the court shall expressly find to be just and proper.
C. The legislation provides an advisory formula to determine the duration of maintenance which includes ranges of different percentages of the marriage length depending upon the duration of the marriage. For example for marriages of zero-15 years, maintenance may be awarded from 15%-30% of the length of the marriage, for marriages of more than 15 years and up to 20 years, maintenance may be awarded from 30%-40% of the length of the marriage, and for marriages of more than 20 years, maintenance may be awarded from 35%-50% of the length of the marriage. However, the court may award non-durational post-divorce maintenance in an appropriate case. In determining the duration of maintenance, the court is required to consider anticipated retirement assets, benefits and retirement eligibility age.
D.Opt-Out:The parties can agree to "opt out" of the application of the guidelines set forth in said legislation and agree to the provisions they set forth in an agreement including the waivers of maintenance.
CHILD SUPPORT IN NEW YORK
Child support in New York is calculated under the Child Support Standards Act ("the CSSA") contained in section 240 of the Domestic Relations Law ("DRL"). The Act provides that the Court shall calculate a "basic child support obligation" based upon the parents combined parental income with their "pro-rata share" determined and then paid by the spouse with the greater income (for purposes of the CSSA only that parent is referred to as the non-custodial parent) to the other parent. Unless the Court makes a finding that the non-custodial parent's pro rata share of the basic child support obligation is unjust or inappropriate, after considering ten enumerated factors set forth in the statute, it must order the noncustodial parent to pay his or her pro rata share of the basic child support obligation under DRL § 240[1-b](f) finding the amount of child support derived from the implementation of the CSSA formula is presumptively correct.
DRL § 240[1-b][f] provides:
The court shall calculate the basic child support obligation, and the non-custodial parent's pro rata share of the basic child support obligation. Unless the court finds that the non-custodial parent's pro-rata share of the basic child support obligation is unjust or inappropriate, which finding shall be based upon consideration of the following factors:
(1) The financial resources of the custodial and non-custodial parent, and those of the child;
(2) The physical and emotional health of the child and his/her special needs and aptitudes;
(3) The standard of living the child would have enjoyed had the marriage or household not been dissolved;
(4) The tax consequences to the parties;
(5) The non-monetary contributions that the parents will make toward the care and well-being of the child;
(6) The educational needs of either parent;
(7) A determination that the gross income of one parent is substantially less than the other parent's gross income;
(8) The needs of the children of the non-custodial parent for whom the non-custodial parent is providing support who are not subject to the instant action and whose support has not been deducted from income pursuant to subclause (D) of clause (vii) of subparagraph five of paragraph (b) of this subdivision, and the financial resources of any person obligated to support such children, provided, however, that this factor may apply only if the resources available to support such children are less than the resources available to support the children who are subject to the instant action;
(9) 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
(10) Any other factors the court determines are relevant in each case, the court shall order the non-custodial parent to pay his or her pro rata share of the basic child support obligation, and may order the non-custodial parent to pay an amount pursuant to paragraph (e) of this subdivision.
Under the CSSA, the amount of child support owed to the custodial parent is determined by multiplying the non custodial parent's income by a set percentage determined by the number of children for whom support is warranted. Where there is one child the applicable percentage is 17%; two children residing in the same household with the same custodial parent, the applicable percentage of each party's income under the CSSA is 25%; three children, 29%; four children is 31% and five or more children no less than 35%. DRL § 240(1-b)(b)(3)(ii).
"Income" is defined as "gross income as was or should have been reported on the most recent federal income tax return". DRL § 240(1-b)(b)(5)(i). Under the CSSA, there are required deductions from gross income for Social Security and New York City and Yonkers income taxes.
In 2021, the basic child support amount is calculated on the first $154,000 of combined parental income (which is adjusted periodically). The Court must also calculate what the child support amount and pro rata share would be on the combined parental income over $154,000.00. And the Court may, in its discretion, and after consideration of the factors set forth above in the statute and the circumstances before it, may award a higher amount of child support based on the amount of income earned over $154,000.
The Court is also empowered to make adjustments to the amount of child support under the statute and may consider such factors as the amount of time each parent spends with the child(ren) and the additional support which they provide to the children. The Court has discretion to determine if the basic award is unjust or inappropriate but must follow the protocols set forth in the statute.
