|
Child Support in New York
(provided by J. Douglas Barics, Esq.)
Basic Child Support
New York's child support laws can be found in two identical statutes, Domestic Relations Law Section 240 and Family Court Act Section 413. The DRL is used for divorce cases in Supreme Court, while the F.C.A. section applies to support proceedings in Family Court.
Under New York law, child support consists of two elements; "basic" child support and the "add-ons" Pursuant to Domestic Relations Law Section 240, New York requires that basic child support be calculated in two parts; (a) the support based on the total combined income of both parent up to $80,000, and (b) the support based on the total combined income of both parents over $80,000.
Calculating Child Support
A step by step following of Domestic Relations Law's child support calculation is as follows:
Step One
Combine both parents adjusted gross income.
Income consists of the following:
1) gross (total) income as should have been or should be reported in the most recent federal income tax return. 2) investment income reduced by sums expended in connection with such investment 3) workers` compensation, 4) disability benefits, 5) unemployment insurance benefits, 6) social security benefits, 7) veterans benefits, 8) pensions and retirement benefits, 9) fellowships and stipends, and 10) annuity payments
At the court's discretion, the following may be added
1) non-income producing assets, 2) 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, 3) fringe benefits provided as part of compensation for employment, and 4) money, goods, or services provided by relatives and friends;
The court may also impute income if the court determines that a parent has reduced resources or income in order to reduce or avoid the parent's obligation for child support;
If not already included in gross income, the court can also add the following:
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;
See Domestic Relations Law 240 Section 1-b(b)(5)(i) through (vi).
Step Two
From the total income, certain deductions are permitted pursuant to Section 1-b(b)(5)(vii). These deductions are as follows: (a) certain unreimbursed employee business expenses (b) maintenance paid to a spouse not a party to the current action for child support, but only if there is a court order or properly written agreement, (c) maintenance paid to a spouse who is a party to the current action, but only if there is an existing order or a properly written agreement, (d) child support paid pursuant to a court order or properly written agreement to a child who is not part of the pending 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.
Step Three
For both parent's combined adjusted gross income, apply the statutory percentages based on the number of children between the parties to the first $80,000. The result will be the total combined basic child support attributable to both parents for the first $80,000 of combined income.
One child - 17%
Two children - 25%
Three children -29%
Four children - 31%
Five children - no less than 35%
Step Four
For both parent's combined adjusted gross income over $80,000, the court has the discretion to apply the same statutory guidelines, and for all practical purposes, will do so. See Cassano v. Cassano 85 NY2d 649 (1995). The result will be the total combined basic child support attributable to both parents for the combined income in excess of $80,000. Many courts will often apply the guidelines to the first $150,000 of the non custodial parent's income, although technically, the amount should be applied to the combined parental income.
Step Five
From the combined basic child support as calculated under steps three and four, allocate a pro rata share of the combined basic child support to each parent. Each parent's pro rata share is a ratio equal to that parent's adjusted gross income divided by the combined adjusted gross income for both parents.
Step Six
In addition to the basic child support, each parent is responsible for certain add-ons, which are (a) unreimbursed medical expenses and (b) day care expenses provided the custodial parent is working or is in school. Each parent's share of these add-ons is the same percentage as calculated in step five.
Therefore, each order of child support should contain the following provisions (a) the non custodial parent's child support, expressed as a dollar amount, (b) the non custodial parent's share of day care expenses, expressed either as a dollar amount or a percentage, and (c) each parent's responsibility of unreimbursed medical expenses expressed as a percentage.
This article is provided as free educational service by J. Douglas Barics, attorney at law. Please feel free to contact Mr. Barics with any comments or questions at lawyer@jdbar.com or (516) 829-4600.
Information provided by:
J. Douglas Barics, Esq., located at
http://www.divorcesource.com/NY/pages/barics.htm
Go to: New York Articles and Resources
|
Please Read Our Disclaimer