My clients often joke that one needs an advanced accounting degree to understand the child support law in New York. It is easier, however, than it first appears. The law in New York requires the parent who does not have primary custody of the children to pay child support to the parent who does. In the past, it was much easier to make this determination, as one parent had substantially more custodial time than the other. These days it can be trickier, as more and more parents opt to split custodial time equally or close to equally. I will address such exceptions later in this blog.
Let’s focus instead, for now, on cases where one parent has primary residential/physical custody. In order to figure out what the child support obligation should be, you first need to add the annual incomes of both parents to get a “combined parental income.” If that total exceeds $ 136,000, the court has discretion to determine how much child support to order on income above that amount. But for incomes below that, the math is pretty simple. From that combined parental income you must deduct FICA and Medicare deductions (as well as some other, much less common deductions). The combined parental income must be multiplied by 17% if there is one child, by 25% if there are two children, by 29% if there are three children, by 31% if there are four children, and by no less than 35% if there are five or more children.
The figure you arrive at must then be allocated pro rata between the parties (i.e. divided in the same ratio as that parent’s income compares to the combined parental income). The non-custodial parent must pay that amount in child support per year. Usually, the parties will agree, or the court will order, that the actual payments be made in the same intervals (e.g., bi-weekly) as the non-custodial parent gets paid. Of course, the parties are free to agree to deviate from that amount of they wish to.
Child support is meant to cover all of the child’s basic needs, including food, clothing and shelter. The only expenses which are specifically excluded are childcare expenses and health care expenses that are not covered by insurance. The Court will allocate the responsibility for payment of these expenses, often referred to as “add-ons,” on a pro rata basis (in proportion to their incomes). Parents will sometimes include other expenses in their support or divorce agreement, such as contributions to the child’s private education or higher education.
The State treats non-payment of child support very harshly. If you are behind on your support payments, the State may suspend all licenses, including your driver’s license, hunting license, and professional licenses. You may also be incarcerated, fined or both after a hearing. Moreover, judgment can be entered against you which will accrue 9% interest, and you may be ordered to pay the other party’s attorney’s fees. Don’t gamble by going to the hearing without an attorney.
Finally, one or both parents can petition the court to adjust the child support obligation up or down provided he or she can prove a sufficient change in circumstances to warrant the modification. Contrary to popular belief, the mere fact that one makes more or less money than he or she did at the time of the original order is not sufficient. Since every case is different, it is important that you speak to an experienced child support attorney to determine whether you have a case before filing it, as there can be penalties for filing a frivolous petition.
As discussed earlier, there are times when the parties have equal or close to equal custodial time with the children. In such cases, it is customary but not required that the child support obligation be reduced or eliminated. However, if there is a disparity between the incomes of the parents, courts will often order the parent with higher income to pay some child support to ensure the child’s standard of living is consistent in both households.
PLEASE NOTE: as with all laws, there are many intricacies, anomalies and exceptions- far too numerous to get into here. This is another reason why you should seek sound legal advice prior to filing a petition.