I. HOW MUCH IS CHILD SUPPORT?
VIDEO: NY Child Support Basics
Years ago, the New York Legislature passed the Child Support Standards Act (“CSSA”) to add consistency to awards of child support. The CSSA sets forth a formula for calculating orders of child support. DRL § 236-B(7); DRL § 240; FCA § 413. However, there are several components of a support order and it can become fairly complex.
- Basic Child Support – Mandatory Support Based off of the Parties’ Incomes
Purpose of Basic Child Support
The purpose of basic child support is to provide for the child’s basic needs, such as food, clothing, and shelter. Lenigan v. Lenigan, 159 A.D.2d 108, 111 (4th Dept. 1990).
Basic child support shall be paid by the primary custodial parent to the non-custodial parent. The primary custodial parent is the parent with whom the child spends more time with. DRL § 236-B(7); DRL § 240(1-b); FCA § 413. Traditionally, this is determined by the number of nights that the child spends with each parent.
Basic child support is primarily based upon the income of the parents. The statute sets forth a mathematical formula to determine the presumptively correct amount of basic child support. The parties can agree to or a court can order a deviation from the presumptively correct amount based upon the circumstances of the case.
- How much is Basic Child Support?
The process for calculating basic child support is extensively outlined below; however, a very rough estimate of basic child support up to that statutory cap can be calculated using the following formula:
Gross income of the person to be paying child support as on last income tax return
.9235 if that income is derived from employment, .847 if that income is derived from self-employment, or 1.0 if no social security or medicare taxes is paid on the income
applicable child support percentage:
.17 for one child, .25 for two, .29 for three, .31 for four, .35 or more for 5 or more
Again, although not perfect, that will produce a rough approximation of the basic child support obligation. Alternatively, this calculator can also help easily calculate a support obligation.
- Calculating the Combined Parental Income Income
To calculate basic child support, we must first identify each parent’s gross income.
The statute requires the addition and subtraction of many different types of income. All of the additions and subtractions can be found on Steps I, II, & III of the New York Child Support Worksheet. However, to come up with a very rough estimate for most cases, take the parent’s gross income on their most recent income tax return, or the number in Box 5 of their most recent W-2 forms, and subtract the amount of FICA (i.e., medicaid and social security tax) actually paid by the parent. If you are having trouble determining how much FICA was owed and presumably paid, MoneyChimp.com provides a reliable and easy to use calculator.
Example: In 2013, John earned $60,000 a year from his employer; had $20,000 of profit in self-employment income; and he received $10,000 in disability pension payments from Veterans Affairs. Calculate John’s gross income for child support purposes. First, calculate the FICA paid by John on the $60,000 ($4,410). Then subtract that amount from the $60,000. That equals $55,590. Then, calculate the FICA paid by John on the $20,000 ($2,826). Then subtract that amount from the $20,000. That equals $17,174. Remember: the amount of FICA owed by an employed person is different the amount paid by a self-employed person. Next, simply add the $10,000, because FICA is not paid on disability pension payments from Veterans Affairs. Finally, add together all three components of John’s income. Thus, John’s gross income, for child support purposes, is $82,764.
If the non-custodial parent’s income is less than the amount designated under the New York Self-Support Reserve (2014: $15,755) or Poverty Guidelines (2014: $11,670), or the presumptive amount will reduce the non-custodial parent;s income below the Reserve or the Guidelines, then the child support obligation will be substantially limited based upon his or her income.
Now, we add the gross incomes for both parents. This total amount is called the “Combined Parental Income.” We also determine the “pro rata share” for each parent based upon how much they each contribute to the Combined Parental Income. The pro rata share is calculated by dividing one parent’s gross income by the Combined Parental Income.
Example: John has a gross income is $82,764 and Mary, the custodial parent, has a gross income of $37,236. Calculate the Combined Parental Income, John’s pro rata share, and Mary’s pro rata share. John’s gross income ($82,764) plus Mary’s gross income ($37,236) equals a Combined Parental Income of $120,000. John’s pro rata share is then calculated by dividing $82,764 against $120,000 for a pro rata share of 68.97%. Mary’s pro rata share is then calculated by dividing $37,236 against $120,000 for a pro rata share of 31.03%.
- Applying the Child Support Percentages and the Circumstances of the Parties
Next, we calculate how much child support is owed on the Combined Parental Income, but only up to the Statutory Cap (2014: $141,000).
The EASY way to do this is by taking the gross incomes calculated above and putting them into Box 1 of this easy-to-us Support Calculator, choose the number of children that the non-custodial parent will be providing support for, and hit Calculate. If the non-custodial parent is also going to be paying maintenance, be careful with this, as the non-custodial may or may not be entitled to an adjustment of his gross income based on those maintenance payments.
To calculate it by long hand, take the Combined Parental Income (but only up to $141,000) and multiply it by the applicable Child Support Percentages (1 child in the care of the custodial parent: 17%, 2 children: 25%, 3 children: 29%, 4 children: 31%, 5 or more children: 35% or more). That result is called the “Combined Child Support Obligation.” This is how much New York presumes it will take both parents, combined, to raise the child(ren) each year. From there, divide the Combined Child Support Obligation based upon each parent’s pro rata share. This results in the “presumptively correct amount of basic child support” to be paid by the non-custodial parent.
Example: John and Mary’s Combined Parental Income is $120,000. John’s pro rata share is 69%. Mary and John have two children together. Mary is the primary custodial parent for all three children. Calculate John’s basic child support obligation. First, multiply the Combined Parental Income ($120,000) by the applicable Child Support Percentage (.25) to obtain a Combined Child Support Obligation of $30,000. Then, multiply the Combined Child Support Obligation ($30,000) by John’s pro rata share (.6897). John’s basic child support obligation, is $20,961.00 per year.
The Court can then “deviate” from the presumptive amount based upon the circumstances of the case. For example, it can be argued that a non-custodial parent should pay less basic child support because:
- the non-custodial parent provides all transportation for the child, or
- the child resides with the non-custodial parent 49% of the time, or
- the non-custodial parent pays a substantial amount in union fees, dues, or student loans, or
- the non-custodial parent provide for the child’s cell phone.
For all income beyond the Statutory Cap (2014: $141,000), the Court will either apply the Child Support Percentages or it will determine how much is fair and appropriate under the circumstances, or a combination of both. Cassano v. Cassano, 85 N.Y.2d 649, 653 (N.Y. 1995); Marcklinger v. Liebert, 88 A.D.3d 1114, 1115.
In determining how much is fair and appropriate, the Court will look to, amongst other things, the child’s actual, reasonable needs. Gluckman v. Qua, 253 A.D.2d 267, 271-72 (3d Dept. 1999) (internal citations omitted); Anonymous v. Anonymous, 222 A.D.2d 305, 306 (1st Dept. 1995) (where “the combined parental incomes exceeded [the statutory cap], the court properly determined child support based on the children’s actual reasonable needs”); Matter of Brim v Combs, 25 A.D.3d 691, 693 (2d Dept. 2006).
To find out how much it would be simply applying the Percentages, you can, again, use this Support Calculator, as discussed above.
- Health Insurance & Cash Medical Support – Mandatory Support
Every order of support must ensure that the subject children are covered by health insurance. There are many rules in place to determine which parent shall provide the health insurance coverage; however, whichever parent is providing the health insurance, if that parent is incurring costs in providing the health insurance, then they are entitled to a credit added to or subtracted from the presumptive amount of basic child support called “Cash Medical Support.” This credit is in the amount it costs for the parent to provide health insurance for the children, presumptively multiplied by the other parent’s pro rata share.
Typically, to calculate the cost of providing insurance for the children when a family plan is utilized, take the cost of the family plan and subtract it from the cost of the single plan. Any employer’s human resources representative should be easily able to provide the costs for the available health insurance plans. DRL § 240(1-b)(c)(5); FCA § 413(1)(c)(5).
Example: John owes Mary basic child support. John has health insurance coverage available to him and the children through his employer. Mary does not. The family plan costs $1,250 per year. The single plan costs $250 per year. John’s pro rata share is 69%. Mary’s pro rata share is 31%. Calculate the Cash Medical Support and how this will affect John’s basic child support obligation. The family plan ($1,250) minus the single plan ($250) equals Cash Medical Support in the amount of $1,000 per year. John’s share of the Cash Medical Support is determined by multiplying his pro rata share (.69) by the amount of Cash Medical Support ($1,000). Thus, John is responsible for providing an additional $690 a year as Cash Medical Support, and he will, just by paying the $1,000 premiums. However, Mary’s share of the Cash Medical Support is $310 (.31 x $1,000). Mary will need to somehow reimburse John. Therefore, John’s basic child support obligation should be reduced by $310 to credit him for Mary’s share of Cash Medical Support that he is providing.
- Unreimbursed Medical Expenses – Mandatory Support
Kids tend to have many health related expenses. They get sick, they need contact lenses, they want braces, etc. They just can’t help themselves. In the process, they cost parents a great deal of money. Accordingly, it is only fair that these expenses shall be split divided between the parents, if reasonable. Typically, the expenses are split based upon the parent’s pro rata shares. DRL § 240(1-b)(c)(5(v)); FCA § 413(1)(c)(5)(v).
Practice Tip: Do not get lazy when drafting this provision an agreement. Clearly delineate what expenses will or will not be included. Will orthodontic work be included? How about contact lenses?
- Work & Education-Related Child Care Expenses – Mandatory Support
Where a custodial parent is working or is receiving education or training which will lead to employment, and incurs child care expenses as a result, a court shall also order reasonable child care expenses to be divided between the parties, presumptively based upon their pro rata shares. DRL § 240(1-b)(c)(4); FCA § 413(1)(c)(4).
Example: Mary and John are the parent’s of two young children. Mary is the custodial parent. John is the non-custodial parent. Mary’s pro rata share is 69%. John’s pro rata share is 31%. Mary works 8:30 a.m. to 5:30 p.m. She requires a babysitter to pick up and watch the children after school from 3:00 to 5:30 p.m., Monday through Friday. This costs her $10,000 per year. Determine how will this effect John’s child support obligation. The $10,000 expense, if and only if it is reasonable, is an Education-Related Child Care expense to be divided between the parents. Mary’s share of the Work Related Child Care Expense is determined by multiplying her pro rata share (.31) by the amount of the expense ($10,000). Thus, Mary is responsible for providing an additional $3,100 a year as a Work-Related Child Care Expense, and she will, just by paying the babysitter. However, John’s share of the Expense is $6,900 (.69 x $10,000). John will need to somehow reimburse Mary. Therefore, John will be required to pay an additional $6,900 per year to Mary for Work-Related Child Care Expenses.
- Seeking Work Related Child Care Expenses – a Discretionary Add-On
As discussed above, a custodial parent who is working and incurs reasonable child care expenses as a result is entitled to contribution from the other parent. The same thing applies to those custodial parents who are seeking work and incur reasonable child care expense; HOWEVER, this is entirely within the discretion of the court, i.e., it is not mandatory. The amount each parent contributes shall be in a manner determined by the court. DRL § 240(1-b)(c)(6); FCA § 413(1)(c)(6).
- Enrichment (Educational) Expenses – Discretionary Support
A court may order educational expenses if the court determines that post-secondary, private, special, or enriched education for a child is appropriate. The expenses shall be ordered “as justice requires,” “having regard for the circumstances of the case and of the respective parties and in the best interests of the child.” DRL § 240(1-b)(c)(7); FCA § 413(1)(c)(7). Courts tend to look at:
- the financial resources of the parents and child;
- whether the child has shown an interest and proficiency in the relevant area of education; and
- whether the non-custodial parent has been given the opportunity to be involved in the child’s choice of school or education provider.
The amount each parent contributes shall be in a manner determined by the court.
Many years ago, court ordered college expenses were a rare thing; however, today, they are much more common, especially if both parents themselves are well educated. Despite this, other types of educational expense still tend be quite rare. They are typically only ordered where the parents are relatively wealthy or the child has shown a high degree of proficiency in the skill area.
Example: Mary and John’s youngest son, Sam, is 16 years old. Sam plans on going to college in two years. John is a doctor. Mary has her bachelors degree in social work. Both have middle-class lifestyles. Sam is also quite skilled in archery and hunting. He has won many trophies and is quite skilled, but Sam is not really interested in continuing through college. Mary petitions the Family Court for John to contribute towards Sam’s college expenses and John cross-petitions for Mary to contribute to Sam’s hunting related expenses. Which education related expenses, if any, will be ordered? As this is quite discretionary, it is much more a balancing of facts to determine what “justice requires.” Considering their levels of education and the availability of income, it seems likely that Mary and John will have to contribute to Sam’s college education; however, considering Sam’s lack of interest, hunting expenses are likely off the table.
Courts can put reasonable limitations on these expenses too. For example, the court may place a “SUNY cap” on the expense, limiting the parents’ contributions to the average tuition which would be required for the child to attend a State University of New York. Courts may also require the child to maintain a certain grade point average or that the non-custodial parent be involved in the college selection process.
Note: if your child is 4 years old, do not expect college expenses to be mandated by a court. You can still, however, get the other parent to agree to college expenses many years down the road.
Practice Tip: Again, do not get lazy or complacent when drafting this provision an agreement. Clearly delineate what expenses will or will not be included. If you leave something out, it will be presumed you intended it to be left out. Consider whether you want any or all of these things included in the order: SAT classes, pre-college campus visit related expenses, tuition, room, board, fees, expenses related to involvement in sports, transportation expenses, books, laptops, and personal (spending) money.
If you have any questions or concerns, feel free to email me at [email protected], or call at (315) 422-1311, ext. 113. If you would like some information regarding our Collaborative Family Law, you can click here.
Christopher M. Judge, Esq.