How Is Child Support Allocated In A Divorce Case?

In New York, the process of child support determination is similar to the process of alimony determination.

The child support statute is set up to technically look at both parties’ incomes, and there are presumptive calculations of support. There was a seminar that I went to years ago that ran varied calculations either way, and it really doesn’t matter how you do the calculations. It works out the same as if you simply went straight to the non-custodial parent’s income and just applied the statutory formula to that income.

So, the statutory percentages are 17% of adjusted gross income for one child, 25% for two children, 29% for three children, 31% for four children, and 35% for five or more children. This calculation arrives at the presumptive amount. Obviously, there are varying factors in deviating from the presumptive amount. Nevertheless, one can simply compare the noncustodial parent’s income to the child support percentage to know what the “general rule” is.

Many non-custodial parents think child support is just calculated on his/her base salary. Think again! All income counts, so this will include overtime or income from a 2d job. As such, if the custodial parent threatens to sue for child support, you may wish to consider cutting back on overtime, or giving up that 2d job – or else you may be stuck with having to keep earning that income whether you like it or not.

Some people don’t realize if they have rental income, dividend income, or income from investments that it counts as income for child support purposes as well. Additionally, if you receive a tax refund, then guess what? That’s income as well. The good rule of thumb to use is: any money coming into your wallet is probably going to be considered income for child support purposes. Be forewarned!

There are also some other factors the court considers: day care expenses, medical/dental insurance costs and educational expenses – if the custodial parent incurs these expenses and they are unreimbursed, the non-custodial parent may be obligated to pay a portion of these expenses in addition to payment of the “basic child support” as explained above.

Common ways one can deviate from the presumptive amount is if their combined parental income exceeds the statutory cap of $143,000. Again, that “cap” amount is adjusted biannually pursuant to the consumer price index. Another common way of deviating is if one parent has some type of unusual living expense, especially for the non-custodial parent. If they are looking at the deviation, then that means an expense that the normal average person does not have. They will not get a deviation if, for example, a person just has high housing expenses, high food bills, or high utility bills. This is because those categories are expenses that everyone has. In order to get a deviation, they have to provide proof of an unusual expense, such as a high medical cost or a medical condition for which they have a lot of unreimbursed medical expenses.

I’ve also been successful in getting deviations based on a high amount of debt, particularly student loan debt that automatically comes out of someone’s income and leaves them with less disposable income than the average person. The other common way you can get a deviation is if you have significant access time with a child. So, that doesn’t necessarily mean you pay no child support, but if you have the child in your care for approximately 40% or 50% of the time, you can at least make the argument to the magistrate that they could consider the expenses that you have to lay out while the child is at your house in justifying a deviation from what guideline support often is.

The standard visitation for non-custodial parents is alternate weekends. So, if that’s all that a non-custodial parent has, they are less likely to be successful on that deviation argument from child support.

Some people share custody of their child – which means exactly 50%-50% in each household. The issue then becomes whether child support is paid at all – and if so, how much.

The first analysis is whether the shared custody arrangement is pursuant to court order, or just by a mutual, informal agreement. If it’s pursuant to court order, then you can skip to the 2d section below. If it’s pursuant to informal agreement, then you’re best advised to start keeping track of the days (& even hours of those days) the child is with you. Reason being: if there’s a dispute later on about whether you do indeed shared custody, then at least you have something in writing to corroborate same. You should also begin confirming the days you’ll have the child with the other parent in writing. As an example, you can send a calendar to the other parent for the next month marking off “M” or “F” on the days to designate which days the child will be with you versus the other parent. In the end, you’re best advised to file a petition for shared custody & get the arrangement confirmed via court order.

The prevailing law – however incorrect – holds that in a shared custody situation the parent who makes more is automatically deemed the noncustodial parent & is thus potentially liable for the full guidelines amount (i.e., 17% for 1 child, 25% for 2, etc.). That said, many courts deviate from the presumptive calculation in a shared custody situation & do an off-set: first, then calculate support as if the father is paying the mother support. Then they calculate as if the mother pays the father support. The difference between the two calculations would therefore be the only money changing hands.

If the other parent threatens to sue you for child support & you’re already supporting another child, then the very first thing you should do – if you do NOT already have a child support order for that 1st child – is to have a written agreement drawn between you & the mother of that 1st child. The agreement should be drafted by a capable child support lawyer, as there’s particular language which should go in there so it’s valid.

You are best advised to then file a petition in Family Court & get a Support Magistrate to issue a court order based on the agreement. Then if the mother of the 2d child files a petition for a support order, you can produce a copy of that agreement and/or order, along with proof of payment, and you should receive a credit for supporting that 1st child.

Additionally, in 2010, New York law amended its child support guidelines to include an automatic modification of child support once every three years. This means that if your child support order is up for a review, you may simply file a petition at the 3-year mark & have the Court re-calculate support based on current incomes. Moreover, if you or your child’s parent has undergone a substantial change in circumstances, warranting a modification, the court can also assess your situation to determine if a modification is necessary.

A guy came in to see me saying the mother of his child was suing him for 50% of college expenses. He said he was already paying basic support & simply didn’t have any money left. I reviewed his settlement agreement – it clearly said he was to pay for college. Bottom line: he was screwed! Lesson learned: save for college when they’re young!

Child Support in New York generally continues until age 21 & thus includes payment towards college expenses. If the parent did not start a 529 plan early on, then s/he will still generally be liable for their share of college expenses – whether they can afford it or not. As such, if you have a child in grade school, it’s best to start a 529 plan now or else set yourself up to get screwed later (or hope they attend public school). Support Magistrates will most likely impose the expense of college on the non-custodial parent even when he/she is already paying basic child support. Thus, it’s a double-whammy: If you’re making $50,000/year, you could already be paying $150 per week in basic support – and then on top of that you could be $100 or more per week towards college expenses. Lesson: save now or hurt later!

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