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.
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
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.
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 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.
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.
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.