Child Support In New York Some Common Questions and Answers By: Sharon L. Dyer, Esq.
Child Support In New York
Some Common Questions and Answers
By: Sharon L. Dyer, Esq.
How is Basic Child Support Calculated?
Basic child support is paid by the non-custodial parent to the custodial parent based upon a percentage of combined parental income under New York’s Child Support Standards Act. In New York, a Support Magistrates or Judge calculates a presumptive amount of child support to be applied, unless there are unusual circumstances. In those cases where there are unusual circumstances the Magistrate or Judge will then “deviate” from the presumptive amount of child support set by the statute.
At present, a presumptive amount of child support will be initially calculated for up to $143,000 of combined parental income. This is more or less gross income, before most taxes are deducted and not net income. Only FICA-Social Security and medicare taxes are actually deducted from income before calculating child support. This results in “Adjusted Gross Income” which is used in the formula. For one child the amount of child support to be paid is 17% of the Adjusted Gross Income, for two children 25%, for three children 29%, for four children 31%, and for five or more children no less than 35%.
For example, if the non-custodial parent has $80,000 in Adjusted Gross Income and the custodial parent has $20,000, the combined total parental income is $100,000. If they have two children the total child support obligation is 25% of $100,000 or $25,000 a year. Each parent’s share of total child support is based on his or her respective portion of total parental income. In our example, then, the non-custodial parent is responsible for eighty percent (80%) or $20,000 yearly in child support which is then ordered to be paid by the noncustodial parent to the custodial parent. (The other $5,000 of combined child support is in effect paid by the custodial parent to him or herself, and is not made as part of the Court Order of Support.)
What is the Age for Terminating Child Support?
Child support in New York is payable up until age twenty-one. Many people mistakenly believe that child support ends at eighteen. It only ends at an age below twenty-one if a child has become emancipated, such as being self supporting, or in certain other exceptional circumstances.
What Other Support Obligations are there Besides Basic Child Support?
In addition to basic child support, the non-custodial parent will be ordered to contribute to a portion of the child care expenses, health insurance, and health related expenses of the children. These expenses are apportioned between the parents based upon their combined parental income. In our example above the non-custodial parent would pay eighty-percent (80%) of those expenses and the custodial parent would pay twenty percent (20%). The non-custodial parent can also be ordered to pay or contribute to certain educational expenses.
Is Child Support Tax Deductible?
Many people mistakenly think that child support payments are tax deductible. They are not. Child support is not reported as income by the custodial parent and the non-custodial parent receives no deduction for the payment of child support.
If the Non Custodial Parent has lots of Debts, will this Reduce Child Support?
Many payors also think that if they have a large amount of debt that this will reduce the amount of their child support obligation. It does not. The Child Support Standards Act formula is driven by gross income, not expenses. The assumption in New York is that the support of children should be a parent’s number one priority.
What if the Payor doesn’t earn a Regular Paycheck?
If the non-custodial parent does not earn a regular paycheck, sometimes it is difficult to determine what his/her income actually is. For example, if the party is self-employed there may be benefits or personal expenses that are actually paid by the business, which in effect is “hidden” income. In complicated cases the assistance of a forensic accountant can be helpful to determine the amount of hidden income.
Is The Formula for Child Support Always Applied?
After the Judge or Support Magistrate determines the presumptive amount of child support, if he or she believes that the presumptive amount is unjust or inappropriate, then the child support obligation can be determined by other factors and not the presumptive percentages. Also, parents can choose not to apply the Child Support Standards Act by mutual agreement if they execute their own agreement setting forth the presumptive amount of child support and good reasons why they applied a different amount that they believe to be fair. If you wish to enter into such an agreement an attorney is advisable to make sure that the agreement properly “Opts-Out” of the Child Support Standards Act and is legally sufficient.
What Happens when Parents share or split Custody?
Another complicated situation is where the parties either share custody or have a split custody arrangement. In a shared custody arrangement, where each party has the children on approximately a fifty-fifty percent basis, in our area of New York the higher income parent is deemed to be the non-custodial parent. That parent will then pay child support to the lower income parent. Sometimes parties have a split custody arrangement where one parent has primary custody of one child and the other parent has primary custody of another child. In these cases our area courts will often determine each parent’s obligation for the child in the other parent’s household and then the respective obligations will be netted out.
Can the Support Order be Changed?
Child Support Orders can be modified when there is a substantial change in circumstances, such as changes in the parties’ custodial arrangements. Additionally, child support orders are modifiable after three years have passed since the last Order was made or adjusted, or when there has been a change in either party’s gross income by 15% or more since the previous Order.
What Court determines Child Support?
Requests for child support are generally brought in Family Court. However, if a divorce action is pending, then child support requests are heard as part of the divorce action. Divorce actions are heard in a New York Supreme Court, which is a trial court in New York.
The family law attorneys at Levene Gouldin & Thompson can help you evaluate your child support case and offer you guidance and assistance, either in settling child support issues by agreement or representing you in the proper court.