As a Long Island divorce lawyer, I see first-hand, every day that one area of divorce that causes the most stress for divorcing couples in Nassau County and Suffolk County is the matter of child support. Custodial parents are concerned they will be left with a larger financial burden than the non-custodial parent and the non-custodial parent is concerned that the money provided will not be spent on the child or children’s needs.
Child support is financial support provided by a non-custodial parent for the needs of the child or children, including basic needs such as food and clothing, medical and educational expenses, child care costs, and health insurance. The amount of support may be privately arranged between parents and caretakers, or may be determined by a Support Magistrate in Nassau County or Suffolk County Family Court.
Child support obligations in New York are governed by the Child Support Standard Act (CSSA), enacted in 1989, which provides a formula for determining each parent’s responsibility to provide financially for the his or her children. The CSSA takes into account both the income and expenses of both parents in order to calculate each parent’s pro rata share of child support.
Basic child support, before considering factors such as medical or educational expenses, is determined by calculating each parent’s share of the combined parental income, and using that percentage to determine the responsibility of each party. The income calculation is based upon gross income, usually reflected in the most recent tax return, as well as other income such as disability payments, rental income, and other government or employment benefits. A court may also consider non-recurring income such as gifts or lottery winnings in its calculation.
The percentage of combined parental income that is used to calculate basic child support under CSSA is as follows:
- 17% of the combined parental income for one child
- 25% for two children
- 29% for three children
- 31% for four children
- No less than 35% for five or more children
This formula is applied to combined parental income above the poverty income guideline ($11,770 annually for a single person), and up to $141,000. If a parent’s income falls below the poverty income guideline, the minimum amount for basic child support is $300 per year. Above the $141,000 threshold, the court will consider additional factors such as parents’ financial resources, additional needs of the child, and other factors it determines to be relevant. In circumstances where the total combined parental income amounts to over $141,000 the court may, but is not required to, use the percentages set forth by CSSA.
Retroactive child support may also be awarded from the date that the support was demanded. Child support will not be owed retroactively from the date of the child’s birth unless a demand was made at that time.
A court may also impute the income of a noncustodial parent if that parent is unemployed or underemployed. This may be done by basing the child support obligation upon the earning income of the individual. The imputation of income mechanism may be used by the court in instances in which it appears to the court that an individual is attempting to avoid child support obligations by remaining unemployed or underemployed.
For example, if a noncustodial parent is working “off the books,” the court may impute the income of the individual by evaluating that individual’s expenses and expenditures. For example, if a parent shows income of $11,000 per year, but his expenditures amount to $30,000 per year, a court may impute the true income by assuming that this individual earns at least $30,000 annually.
Overdue child support may be collected by the New York State Child Support Enforcement Bureau. Garnishment of wages, interception of unemployment benefits, tax refund interception, or property execution such as seizure of bank accounts are all lawful administrative procedures by which child support obligations can be enforced without going to court. Failure to pay child support can result in a noncustodial parent being held in contempt of court. This can result in a loss of driver’s license or even jail time if a noncustodial parent is ordered to pay but does not pay. A court will consider whether a noncustodial parent has truly fallen on hard times before holding the parent in contempt of court. For example, if a noncustodial parent has lost a job, incurred a large medical expense, or presents some other exceptional circumstances, the court may withhold its power to do so. However, it is important to remember that, under CSSA, this decision is entirely within the discretion of the court.
Finally, a custodial or noncustodial parent is permitted to petition the court for a modification of his child support arrangement in order to increase the amount due to increases in cost of living, or to decrease the amount due to a loss of income.
For more information on child support, visit the New York State Division of Child Support Enforcement Child Support Standards Chart at https://www.childsupport.ny.gov/dcse/custodial_parent_info.html#whatis and https://www.childsupport.ny.gov/dcse/pdfs/cssa_2015.pdf.
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