Jack123
recently joined
Reged: 11/06/09
Posts: 12
|
|
Hey everyone. 1st time poster. So im going through a divorce and have sort of an odd situation. Ive been to several lawyers and seem to get different answers from them. Here is the situation:
Im a doctor currently doing my residency training, making 55k per yr. I got married 3 yrs ago and had a child 16 month ago. My wife and i have decided to split up. We are in the process of making a separation agreement. She is making as much as me. My earning potential is around 300-400k per yr, and i will start making it in about 3 yrs. In the agreement I offered her a cap on my income (without involving her income) of $140,000. She says that she does not want the cap. My question is if we go to court, will the judge cap my income at some point? At how much would it be? Can we just agree to go to court in 3 yrs when im making 300k? Would the judge even bother with coming up with that number now or would he just tell her to come back to court when i start making more?
Can she go to court in 3 yrs and request 5x the child support payment just because im making more even though there is no change in circumstance of the child?
I wanted to put a cap in the separation agreement so that we would not have to come back to court. what would be a fair number?
All your advise is appreciated
thank you
|
Sherron
Carpal \'Tunnel
Reged: 11/25/06
Posts: 8524
|
|
"Can she go to court in 3 yrs and request 5x the child support payment just because im making more even though there is no change in circumstance of the child?"
The change of circumstance would be your increased income. As far as I know, in every state cs is modifiable at any time with a qualifying event - such as a change in income.
|
Jack123
recently joined
Reged: 11/06/09
Posts: 12
|
|
yes, but does that mean that the judge will give her the full ammt? According to NYS law, for one child its 17% up to combined income of 80k, after which the judge may decide the amount and percentage. If he gives her the full amount, the money becomes a form of alimony because its beyond the reasonable needs of the child.
|
Sherron
Carpal \'Tunnel
Reged: 11/25/06
Posts: 8524
|
|
not sure, there is a poster on another board here who is from NY; I'll pm her and ask her to check in here. Hopefully she'll have more answers specific to your state.
|
Goodmom
veteran
Reged: 06/17/07
Posts: 1203
|
|
You aren't going to get a cap put in your court order. The judge is going to go by what you are currently making, not your potential once your residency is finished. And I doubt a judge will order a cap at this time based on what you think you will make.
This is a losing battle at this time. The time to fight this battle is when you are making more money.
|
Jack123
recently joined
Reged: 11/06/09
Posts: 12
|
|
ok, so would it be reasonable to write in the separation agreement that the non custodial parent will pay 17% now, and if a change in circumstance shall arise, both parties can either renegotiate the cs payment, or if they cannot agree, they may seek arbitration.
Also, i was wondering what will happen when i am making 300k. Do you think the judge will cap then? Where do they normally cap in ny?
|
Goodmom
veteran
Reged: 06/17/07
Posts: 1203
|
|
Where the cap is set is pretty much up to the individual judge. IF a cap is set, that is.
You can see if you can either get your stbx to agree or get it ordered that both parties have to go through mediation before going to trial. But if you are asking for a cap, mediation probably won't work.
But the child support you pay now is going to be based on guidelines. And, in the future, the child support will be based on guidelines. You really don't have any room to negotiate this issue. And if you want income capped, then you are going to have to either get your stbx to agree (and that is not something that I would agree to as I think all income of both parties should be considered) or a judge to order it.
|
googledad
Carpal \'Tunnel
Reged: 12/31/05
Posts: 4790
|
|
Also, i was wondering what will happen when i am making 300k. Do you think the judge will cap then? Where do they normally cap in ny?
----------------------------------------------------------
3. CALCULATION OF CHILD SUPPORT
(a) Child Support for the Combined Income Under $80,000
DRL 240 1-b(c)(2) provides that for the combined income of both parent's up to $80,000, 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 $80,000 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 $80,000
DRL 240 1-b(c)(3) provides that for the combined adjusted gross income over $80,000, child support shall be calculated using either the factors listed in DRL 240 1-b(f) or the percentages under DRL 240 1-b(b)(3). Initially, it was understood that for the court to apply the percentages past $80,000, the reasons must satisfy the factors of DRL 240 1-b(f). But in Cassano v. Cassano 85 NY2d 649 (Court of Appeals, 1995), the court ruled that it was not necessary to state the factors of DRL 240 1-b(f) in order to apply the percentages past $80,000, but instead simply articulate a reason why it was doing so.
(c) High Income Cases
For high income cases, the court may set a cap which falls over $80,000 but less than the total combined income. In Kaplan v Kaplan, 21 A.D.3d 993,(2nd Dept. 2005) Appellate Division affirmed the lower court's holding in applying CSSA guidelines to a combined income of $300,000 when the combined income was over $400,000. However, as there was an annual award of maintenance of $90,000 per year, the Appellate Division corrected the lower court's child support calculation and deducted that amount from the $300,000 cap pursuant to DRL 240 1-b(b)(5)(vii).
-----------------------------------------------------
Basically , all this means is that statutory guidelines will apply up to $80,000 in combined parental gross income , after $80k , the percentage of income used to calculate support is at the judge's discretion and a cap may be applied at high incomes .
--------------------
Adversus solem ne loquitor
|
Cassie23
Carpal \'Tunnel
Reged: 10/07/05
Posts: 8886
|
|
I am from NY, and my husband has dealt with the deviation of CS based on combined income of over $80k.
First of all you don't need anything in your decree other than the current amount of CS. Nothing about caps, or modifications, etc. Either of you can choose a modification based on a change of circumstance (and yes, increased income CAN be used), and based on the increased needs of the child.
Now once my H made over $80k, both parties agreed to cap his income at $80k. His X's lawyer told him that was considered the norm. We are not in NYC, but Western NY, so sometimes the deviations are different.
Her income was put on paper, but his income was capped at $80k. So his income LESS the FICA taxes, 17% of that became his CS.
Okay if income continues to rise, sometimes they will cap at $150k. Also some courts deviate and use the 17% up to $80k, then use the rest at a different percentage. An example of this would be, let's say you make $250k--- 17% is configured for the first $80k and then another percentage (let's use 10%) for the last $170k. Now the courts can decide to cap at $150k in total and use 17% for the first 80k and then 10% for the last $70k. It really just depends, and HOPEFULLY your X and you can come to an agreement THEN when she goes for a modification. No point on putting it on paper now, because it is always modifiable...
You do however WANT to have the clause in there that you can claim your child every other year. You want this in your decree NOW because CS courts CANNOT order this. So if you ask for it later, upon a CS modification they won't allow it unless you take it to the higher courts (which would cost major $$$). Get that in your order NOW, along with joint custody.
Where in NY are you??
|
Jack123
recently joined
Reged: 11/06/09
Posts: 12
|
|
Thank you for your responses. Im in brooklyn. NY.
Does she have to agree to claiming child every other year? If she does not, is there anything that i can do except take it to a higher court? Also, if im paying lets say over 80 percent of the total child support ( i will make 5x she does) and 5/6 of all other expenses, can i claim the child 5/6 yrs if i go to court?
thanks
|
Previous
Index
Next
Threaded
Edit
Reply
Quote
