What You Need to Know from Long Island Child Support Attorney Robert E. Hornberger, Esq.
The resolution of a Child Support agreement on Long Island is a tenuous topic that must be discussed during your divorce in Nassau County or Suffolk County. This article will provide you with a basic understanding of how child support is calculated in the State of New York and assist you and your spouse in reaching an agreement that works well for the both of you.
Does My Child Custody Arrangement Affect Child Support?
If you and your spouse have a Child Custody arrangement wherein one of you has Sole Residential Custody over your unemancipated child(ren), the Non-Custodial parent will be ordered by a Nassau County or Suffolk County Court to pay direct Child Support to the Custodial parent.
However, not all parents enter into these types of agreements. You and your spouse may be among the couples who elect to enter into a Joint Residential Custody arrangement, where your child(ren) is/are spending an equal amount of time with both parents. Many Long Island couples believe, incorrectly, that this alleviates the requirement of one parent paying Child Support to the other. In Joint Residential Custody arrangements, the wage-earning spouse, or the spouse with the higher income, is deemed the Non-Custodial parent for Child Support purposes. Therefore, the “non-custodial” parent (the spouse with the higher annual income) will still be required to pay Child Support to the “Custodial Parent” (the spouse with the lower annual income) pursuant to the Child Support Standards Act of New York unless the parties opt for a different arrangement.
Keep in mind that Legal and Residential custody are not one in the same. Residential custody (where the child(ren) is/are living) will affect Child Support but Legal Custody (which parent is permitted to make major decisions on behalf of the child(ren)) will not.
What is the Child Support Standards Act?
The Child Support Standards Act is found in Article 4 of the New York Family Court Act. This statute sets forth guidelines which the courts must follow when calculating Child Support upon the final determination of your Action for Divorce. The amount of support the non-custodial parent is required to pay weekly or monthly does not depend upon the total number of children born of the marriage. Rather, the non-custodial parent is only required to pay child support for those children who are unemancipated at the time the judgment is entered. In New York, a parent is obligated to support his or her child(ren) until each child reaches the age of 21, at which time the child will be deemed emancipated. Therefore, a Non-Custodial parent who has one (1) unemancipated child of the marriage will be required to pay 17% of his or her annual adjusted gross income for child support, while the Non-Custodial parent of four (4) unemancipated children will be required to pay 31% of his or her adjusted gross annual income.
What is Adjusted Gross Income & How is it Calculated in New York?
You may be asking yourself, “What is adjusted gross annual income?” Well, the answer is simple – the government takes into account the fact that you have already paid certain taxes on your annual income when calculating a Child Support payment. Therefore, before determining the annual Child Support award the courts will deduct a certain percentage from your income for FICA taxes (that is Social Security and Medicare) already paid, amongst other permissible deductions. So if you make $100,000 per year, your child support will not be calculated on the full $100,000.
After calculating the adjusted gross annual income of both you and your spouse, the two figures will be combined to determine the total combined parental income. From there, your individual adjusted gross income will be divided by the total combined parental income to determine what is called your “pro-rata” share (the same will be done for your spouse). Those numbers are important because your “pro-rata” share of the total combined parental income will equal your percentage of responsibility for unreimbursed medical, educational, and other extraordinary expenses on behalf of your unemancipated child(ren).
Under the Child Support Standards Act, the non-custodial spouse is required to pay child support based on a certain percentage of his or her income depending upon the number of unemancipated children of the marriage, as well as his or her “pro-rata” share of the other expenses mentioned above.
Are My Spouse and I Bound by the Child Support Standards Act?
If you and your spouse are amicable and desire to enter into a Child Support arrangement that avoids the application of the Child Support Standards Act, your best option is to enter into an agreement and avoid court intervention. Child Support Attorney, Long Island’s Robert E. Hornberger, Esq. can help you draft a Stipulation of Settlement or Separation Agreement for you. Your attorney will still be required to go through the motions of calculating Child Support based upon the statute in the agreement, but you and your spouse will have the option to “opt-out” or not accept these calculations as your Child Support payments. You will then be able to create a more personalized and individual Child Support arrangement that allows the Custodial parent to have enough funds to care for the children and the Non-Custodial parent to still be able to live on his or her own. If you choose to go this route, you will be asked to state specific reasons for why you are “opting-out” of the Child Support Standards Act. These can include anything from the financial resources of the Custodial and Non-Custodial parent to the fact that one spouse has created a college fund for the children.
How is Child Support Collected in Nassau County and Suffolk County on Long Island?
If you enter into an Agreement with your spouse you will have the option of electing how Child Support is paid and received. These payments can be made directly to the custodial parent by mail, electronic funds transfer or any other delivery method which works for you. However if you have concerns that your spouse, as the Non-Custodial parent, will be late or fail to pay Child Support, it is important to discuss the Support Collection Unit with your Long Island Divorce Attorney. Through the Support Collection Unit’s Child Support Enforcement Bureau you will find a resource to assist in collecting and keeping track of all child support payments.
If you elect to receive Child Support payments through the Child Support Enforcement Bureau, you will be required to open an account to which payments will be sent. The Bureau will receive these payments directly from the Non-Custodial parent and forward the same to you. It will also keep track of any missed payments so you are well aware of any arrears due and owed. However, this still presents an opportunity for the Non-Custodial parent to fail to make payments, and the Child Support Enforcement Bureau has the authority to collect payments in other manners to avoid this. If a Non-Custodial parent is delinquent with their Child Support payments the funds can be levied from the parent’s income, meaning the parent will never see the funds that are earmarked for Child Support payments. If the Non-Custodial parent is unemployed and receiving Unemployment Benefits, these can be withheld for Child Support as well as Income Tax Refunds or anything won by playing the lottery. Therefore, if any of my clients express unease about the Non-Custodial parent’s ability, or willingness, to timely pay Child Support I always make sure to discuss the Child Support Enforcement Bureau with them.
Have Questions About Child Support on Long Island? Talk to Your Long Island Divorce Lawyer
Issues of Child Support can be some of the most emotionally charged and contentious issues of Divorce, for Nassau County and Suffolk County couples. If you have questions about your Child Support arrangements you should discuss them with Child Support Attorney, Robert E. Hornberger Esq. PC, right away. The experienced, compassionate and aggressive divorce lawyers at Robert E. Hornberger, Esq, PC have successfully helped protect the Child Support rights of both Custodial and Non-Custodial parents in Suffolk County and Nassau County on Long Island. Contact us today at 631-923-1910 for a free initial consultation to make sure your rights are protected.