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Your Right to Child Support
In New York State, custodial parents (i.e., those parents who have primary care giving responsibility for their children and do not live with their children's other parent), have a right to child support from the children's noncustodial parent pursuant to the Child Support Standards Act. Under this law, enacted by the New York State Legislature in 1989, both parents must contribute to child support, whether or not they were ever married to each other, and whether or not they are employed or have a limited income.
Calculating the Amount of Child Support
A court (Supreme Court or Family Court in New York State) determines the amount of child support to be provided based upon a relatively simple formula involving a percentage of the parents' "combined parental income" up to $80,000.00.
The formula to be applied to each parent's income is as follows: first, gross income is determined (i.e., the amount which was or should have been reported on the most recent Federal Income Tax return). Any benefits received are then added to gross income: e.g., worker's compensation, disability, social security, veteran's benefits, pensions, fellowships, and annuity payments. Nonrecurring payments such as lottery winnings, life insurance policies, gifts and inheritances, among others may also be included as income by the court. (Public Assistance payments are not considered benefits to be added to the gross income.)
This amount is then reduced by any alimony, child support payments to other children, New York City or Yonkers tax and FICA (social security) taxes paid. (This is intended to be a general guide - there may be other additions or subtractions.)
Next the respective incomes for each parent are combined and the total is multiplied by 17% (0.17) for one child; 25% (0.25) for two children; 29% (0.29) for three children; 31% (0.31) for four children; and 35% (0.35) for five or more children. If the "combined parental income" exceeds $80,000.00, it is within the judge's discretion to apply the Child Support Standards Act formula to the excess amount or to fashion an alternative application of that amount.
Once a total figure for child support is arrived at, the court will then determine the percentage that each parent should contribute based on the same proportion as each parent's income is to the combined parental income. (e.g. if the noncustodial parent's income is 60% of the "combined parental income" then that will pay 60% of the "basic child support obligation".)
In addition to this basic child support, if the custodial parent works, the noncustodial parent must pay a prorated share of child care costs that are incurred. If the custodial parent is seeking work or participating in qualifying educational activities (i.e. leading to employment), it is within the discretion of the court to apportion reasonable child care costs.
The noncustodial parent must also pay for a prorated portion of any present or future uninsured medical expenses of the children. Finally, the noncustodial parent may also be required to pay for a prorated share of the children's present or future post-secondary, private, special, or enriched educational expenses depending upon the particular circumstances of the case and the best interests of the children.
While the formula to be applied is a very simple one, each situation is unique, making it difficult to boil the calculation for child support down to a hard and fast rule. Where a judge finds that use of the support formula results in an unjust or inappropriate result, the judge has the discretion to adjust the award up or down based upon certain statutory factors, i.e. gross disparity in income between custodial and noncustodial parent, standard of living child would have enjoyed, tax consequences to the parties, among other factors.
It is of vital importance that the judge is made aware of any special needs that children may have (e.g. educational, medical, etc.). It is also important that there be full financial disclosure with verification that no assets or income have been deferred, transferred or hidden so as to reduce the income of either parent, thereby decreasing the amount they would be required to contribute toward child support. In addition to a sworn net worth statement that the parties must produce, a judge has the authority to order corroborative documentation such as pay stubs, business records, and receipts. If a court determines that a party has voluntarily reduced income or assets so as to reduce the child support obligation, the court may order that the party pay support based on their earning capacity versus their actual income.
If child support payments would put either parent below the poverty line, then the judge will reduce the amount of child support required. However, by law the judge cannot order less then $25.00 per month, regardless of what a parents' income is.
Both parties may agree to opt-out of the child support formula by a validly executed voluntary agreement which includes a provision that the parties have been fully advised of the provisions of the Child Support Standards Act. However, before parties enter into such an agreement, consultation with an attorney familiar with the provisions of the law is strongly advised.
Where to Go to Get an Order for Child Support
Custodial parents seeking child support along with a divorce should go to the Supreme Court in their county.
Custodial parents not involved in a divorce proceeding can go to the Family Court or Supreme Court in their county.
Marital property is all property earned or acquired during the marriage. Separate property is that owned by one party before the marriage. In New York, separate property is awarded to that individual. However, the increase in value of separate property that occurs during the marital period may be divided under the equitable distribution system. Separate property also includes gifts or inheritances received during the marriage.
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