Child Support

Child support can be daunting, because there are many different ways to address the needs of the children. Parents first need to understand the monthly expenses of meeting the children’s needs and cultural enrichment and then decide on a way to meet those needs that suit their own family. A point of reference is how child support is calculated under New York law. Below you will find a step-by-step approach that is applied under relevant statutes in order to calculate the amount of child support. However, it is important to realize that every case is different and the outcomes largely depend on the details of each scenario.

The first step is to find out how much income each parent has (done in two parts):

First, under N.Y. Dom. Rel. Law § 240 1-b (b)(5)(i), (ii), and (iii), calculate the non-discretional income in 3 categories:

• (i) gross (total) income as should have been or should be reported in the most recent federal income tax return.
• (ii) to the extent not already included in gross income in clause (i) of this subparagraph, investment income reduced by sums expended in connection with such investment;
• (iii) to the extent not already included in gross income in clauses (i) and (ii) of this subparagraph, the amount of income or compensation voluntarily deferred and income received, if any, from the following sources:
  • (A) workers’ compensation,
  • (B) disability benefits,
  • (C) unemployment insurance benefits,
  • (D) social security benefits,
  • (E) veterans benefits,
  • (F) pensions and retirement benefits,
  • (G) fellowships and stipends, and
  • (H) annuity payments;

Second, under DRL 240 1-b (b)(5)(iv), at the discretion of the court the following income may be imputed:

• (A) non-income producing assets,
• (B) meals, lodging, memberships, automobiles or other perquisites that are provided as part of compensation for employment to the extent that such perquisites constitute expenditures for personal use, or which expenditures directly or indirectly confer personal economic benefits,
• (C) fringe benefits provided as part of compensation for employment, and
• (D) money, goods, or services provided by relatives and friends;

In addition, if the court finds that a parent has reduced assets to avoid obligations, they may impute certain amounts as income.

Lastly, under DRL 240 1-b (b)(5)(vi), to the extent not already included in gross income in clauses (i) and (ii) of this subparagraph, the following self-employment deductions attributable to self-employment carried on by the taxpayer:

• (A) any depreciation deduction greater than depreciation calculated on a straight-line basis for the purpose of determining business income or investment credits, and
• (B) entertainment and travel allowances deducted from business income to the extent said allowances reduce personal expenditures;

Deduct from income

The next step is to make appropriate deductions from income. In accordance with DRL 240 1-b (b)(5)(vi), there are deductions that must be taken from the income before applying provisions, they are as follows:

• (vii) the following shall be deducted from income prior to applying the provisions of paragraph (c) of this subdivision:
  • (A) unreimbursed employee business expenses except to the extent said expenses reduce personal expenditures,
  • (B) alimony or maintenance actually paid to a spouse not a party to the instant action pursuant to court order or validly executed written agreement,
  • (C) alimony or maintenance actually paid or to be paid to a spouse that is a party to the instant action pursuant to an existing court order or contained in the order to be entered by the court, or pursuant to a validly executed written agreement, provided the order or agreement provides for a specific adjustment, in accordance with this subdivision, in the amount of child support payable upon the termination of alimony or maintenance to such spouse,
  • (D) child support actually paid pursuant to court order or written agreement on behalf of any child for whom the parent has a legal duty of support and who is not subject to the instant action,
  • (E) public assistance,
  • (F) supplemental security income,
  • (G) New York City or Yonkers income or earnings taxes actually paid, and
  • (H) federal insurance contributions act (FICA) taxes actually paid.

Calculate the child support

(a) Child Support for the Combined Income Under $141,000

DRL 240 1-b(c)(2) provides that for the combined income of both parents’ up to $141,000, child support is based on applying the statutory percentages based on the number of children pursuant to DRL 240 1-b (b)(3). The result will be the total combined basic child support attributable to both parents for the first $141,000 of combined income.

• One child: 17%
• Two children: 25%
• Three children: 29%
• Four children: 31%
• Five children: no less than 35%

(b) Child Support for the Combined Income Over $141,000

In keeping with the concept of the May 9, 1995, decision of the New York Court of Appeals in the case of Cassano v. Cassano, and the provisions of DRL § 240 and Family Court Act effective January 31, 2010, the Court may apply the child support percentage to the entire amount of the Parties’ Combined Parental Income in excess of $141,000, after carefully considering the mandatory factors for deviations (DRL § 240 (1-b) (e) (3), and finding no reason why there should be a departure from applying the prescribed “child support percentage” to the entire amount of the Parties’ combined income.

(c) High Income Cases

For high-income cases, the court may set a cap, which falls over the statutory cap but less than the total combined income.

(d) Calculate Each Parents Pro Rata Share of Child Support.

From the combined basic child support as calculated above, each parent’s share is prorated in the same proportion as each parent’s income is to the combined parental income. DRL 240 1-b(c)(2)

POTENTIAL ADD-ONS TO BE INCLUDED

Generally, there are add-on expenses to cover amenities and necessities beyond what the statute includes. Below is a list of potential factors to include when determining how much money will be added:

• Health insurance
• Health care expenses
• Child Care
• Education
• Religion
• Extra-curricular activities

COLLEGE AND EDUCATION

There are many ways to suit the needs of the children in each case, and court ordered remedies are certainly one. However, many times the most practical scenarios happen when parents can come together on their own accord and recognize what will work best for the children and how to adequately address their needs. While courts always have the best interests of the children in mind, generally no one is more familiar with the children’s needs and the practical application of any agreement than the parents.

That said, where the court determines, having regard for the circumstances of the case and of the respective parties and in the best interests of the child, that the present or future provision of post-secondary, private, special, or enriched education for the child is appropriate, the court may award educational expenses. The non-custodial parent shall pay educational expenses, as awarded, in a manner determined by the court, including direct payment to the educational provider.

Pursuant to applicable law, if the situation arises where a noncustodial parent pays for housing while the child is away for school, an amount equivalent will be deducted from the required court-ordered support. This will generally apply to children who are away at college so long as ample proof can be provided.

Parents may choose alternative ways for addressing the college expenses of the children that meet their priorities and ability to pay.

TAX ASPECTS OF CHILD SUPPORT

If a person is paying child support, the obligations will not be counted as income to the custodial parent, and will not be deductible by a non-custodial parent (the payor).

YOUR CASE IS YOUR CASE

It is important to remember that no matter how well versed you are in the statutes or in case law, you are able to negotiate an agreement that is customized to your own family’s needs and priorities. Every relationship and family has circumstances that make their situation unique, and that is why it is highly recommended to seek professional advice before attempting to determine what plan may be best for your family.

Alimony Maintenance