Child Support

New York Child Support Attorneys

In New York, child support is a monetary payment tendered by one parent to the other, the non-residential parent, for the care and maintenance of the parties' child/children. Care and maintenance of a child/children includes such expenses as food, clothing, shelter and other basic needs. Child care or day care when required by the work schedule of the custodial parent is another item of child support is an additional support obligation to basic child support. Other items including sports, music lessons, tutoring, or summer camp are costs attributable to the raising of children and may be generally considered separately from basic child support.

In New York, child support is statutory in nature, meaning that there is a specific law "on the books," dubbed the "Child Support Standards Act (CSSA)," which establishes parameters by which a parent's child support obligation is calculated.

In New York, a parent's basic child support obligation is computed by totaling the adjusted gross income of both parents, less certain permissible deductions (i.e. social security tax, medicare tax, NYC income tax, maintenance/spousal support paid), and then taking a percentage of that sum, which percentage is predicated upon the number of children requiring support. Those percentages are:

One Child: 17% of the total parental income.
Two Children: 25% of the total parental income.
Three Children: 29% of the total parental income.
Four Children: 31% of the total parental income.
Five or More Children: no less than 35% of the total parental income.

Although most often adhering to the statutory formula set forth above, New York's divorce and family law Courts do have discretion to consider certain factors beyond strict application of income levels and, in rare instances, to deviate from the statute if it finds the obligation yielded after application of the statute to be "unjust or inappropriate." Such deviation may yield a greater or lesser amount of child support as provided by law.

An attempt by parents to provide for less child support than contemplated in the law may be subject to attack by the custodial parent seeking more support predicated on public policy considerations. Agreements that seek to prevent modification of child support awards, and which attempt to fix child support at one level for the duration of the child’s minority, may also be subject to attack predicated on public policy considerations.

Public policy considerations regarding child support simply means the following: that children are wards of the court and the courts will not be bound by agreements made by their parents if the agreement is to the detriment of the children; that children should be supported by parents, and not by third parties or the taxpayers.

The concept of child support consists of not only the direct payment of monies for the basic needs of the children, such as food, clothing, shelter, and education, but in addition, includes the obligation of both parents to provide medical insurance, pay for uncovered medical expenses, special needs, and other reasonable expenses.

The child support law also includes the obligation of the noncustodial parent to contribute to child care expense if the custodial parent incurs that expense as a result of working.

In addition to the foregoing, the CSSA provides for shared payment, by both parties, of certain "add on" expenses associated with the child(ren), including reasonable child care associated with a parent working or attending school, reasonable health care expenses uncovered by insurance and, in certain cases, educational expenses. Pursuant to the CSSA, such expenses are customarily allocated on a basis proportionate to the parties' incomes.

College Education

Most parents want their children to go to college and such a goal is laudable. However, in the throws of a matrimonial dissolution, with the division of one family into two families, and the maintenance of two homes with its attendant costs, a college education may become difficult to afford.

Where the parents to wish to provide for college education, it is usually recommended that the agreement provide that the parties agree to share equally or pro-rata to income, or in some other ratio, the cost of college, but in an amount that does not generally exceed state college costs for room, board, and tuition in a state college, net of grants and other aid.

Care should be given to define what is meant by college education, as disputes easily arise if the intent of the parties is not clear. For example, does college education mean tuition, room, and board only, or does it mean activities, travel expenses, and SAT costs as well? What about graduate school? This issue should be clarified so that there will be no misunderstanding or dispute between the parties.

People who divorce, and who have children who want to go to college, may “benefit” from the divorce with reference to college aid and grants. If the custodial parent is the mother who, earns less money than the father, the mother can apply for college aid predicated upon her income, and the child may be entitled to receive more aid and grants than if the family was intact.

College aid advisors and planners are professionals who specialize in counseling students to secure maximum aid and grants. You should seek the advice of a college aid planner to see if benefits may be available.

If the custodial parent should remarry, the remarriage does not alleviate the obligation of the noncustodial parent to pay child support. The noncustodial parent will be required to maintain his/her obligation notwithstanding the remarriage of the custodial parent.

Insurance Decisions

Most of us have dealt with auto insurance, homeowners insurance, liability insurance, income protection insurance, vacation insurance etc. Most insurance policies relate to protecting the individual from loss due to unexpected circumstances or legal claims, and each individual must be guided by his or her own needs.

However, several types of insurance may impact on the divorce or separation agreement. The types most frequently dealt with in a separation agreement are health insurance, life insurance and disability insurance.

Insurance is a way of protecting against possible future problems. While it is always a gamble when purchasing insurance, there are certain losses which can be so great that it is almost a necessity to protect against them.

Health Insurance

With the rapidly growing cost of health care and the furor which as emerged regarding health insurance, almost no one is unaware of the need and expense of health insurance. Many people are protected under group health insurance policies supplied by an employer.

In the event that a divorce takes place children remain a part of the family group. Children remain covered by the family health policy regardless of the divorce or marital status of their parents. This is not true for a spouse. When the marriage ends the spouse who is not the named insured on the health policy ceases to be a member of the family and is therefore no longer covered under the family policy provision. Some insurance policies may also specify that a legally separated spouse is not covered by the family policy.

Federal law dictates that all group health policies must have a COBRA provision. This means that for an additional premium, a divorced spouse must have the option to continue his or her coverage under the terms of the policy for a period of three years. Understand that while the continuance of coverage can be very important especially in a situation involving a pre-existing condition or where treatment is in progress, it may be quite expensive. It would be important for you to carefully ascertain the cost of continuing health insurance under the COBRA provision, and this cost must be factored into the agreement.

Further, you should understand that availability of Medicare or Medicaid in your jurisdiction. Again, many groups and organizations offer group rates on health care insurance and these possibilities should also be explored.

Disability Insurance

Disability insurance protects against long term or, in some cases, short term disability which prevents an individual from earning a living. As it relates to the divorce or separation agreement, disability insurance may be useful in protecting the income of the spouse responsible for paying child support or spousal maintenance. Since in most instances child support is dependent on the income of the spouse who is paying it, when income ceases as a result of illness or accident, the inability to pay support may leave the children in dire straits. One possible solution to this problem is for the payor spouse to purchase long term disability insurance which would guarantee child support payments. The cost of this insurance may be paid by an employer or it may be paid by either spouse. The cost may also be shared by spouses depending on circumstances.

Life Insurance

In the divorce or separation agreement life insurance plays a similar role to that played by disability insurance. However, life insurance is much more frequently used and relied upon than is disability insurance. The primary purpose of life inurance is to guarantee the availability of funds for child support, educational costs, or spousal maintenance, in case of the death of the contributing spouse. Life insurance usually pays a lump sum death benefit. In calculating the amount needed (as in college tuition) or you must calculate the principal needed to generate the investment income that would be necessary over a period of time (as in child support or maintenance payments).

In many cases life insurance already exists when the divorce or separation agreement is being formulated. If so, it might be adequate to simply agree that insurance already in force should be kept in force for as long as needed. The beneficiary may have to be changed, or the ownership of the policy may have to be transferred. In addition, when children’s welfare is being considered you might consider setting up a trust with the proceeds of life insurance going into that trust. Life insurance can be used in many different ways and should be considered when there is a need.

Tax Considerations

The payment of child support is a nontaxable event, that is to say, that the payor parent cannot deduct the amount paid for support and the parent receiving the money need not include that money as income.
The Internal Revenue laws provide that the custodial parent automatically has the right to claim the children as dependents. In order for the noncustodial parent to claim one or more of the children as dependents, the agreement must give the noncustodial parent that right, and the custodial parent must sign an Internal Revenue form that is filed together with noncustodial parent’s tax return wherein the custodial parent consents to the other party’s claiming the children as dependents.

Modification of Support

As circumstances change, child support may also need to change. Circumstances change as a child grows older. A twelve year old or a sixteen year old needs a great many more items of clothing and food than does a two or three year old. In addition, parental incomes can change significantly, either up or down. This too might necessitate a modification of child support. Child support is subject to modification based on changed circumstances and legal requirements; it is not, however an automatic entitlement.

Emancipation

Subject to certain limited exceptions, such as an earlier emancipation of a child, a parent is obligated to pay child support until the child's 21st birthday, at which time, this obligation ceases (except in the event the parties agree to extend that obligation beyond the child's 21st birthday).

The issue of emancipation is one that could be very clear, (for example, that at the age of twenty one a parent is no longer obligated to support a child), or, on the other hand, the age of emancipation could be a difficult issue, where for example, the age of support is twenty one, and a child is eighteen, not in school full time, and not able to support him/herself. An issue may arise as to whether or not a child between eighteen and twenty one is emancipated and should continue to receive support from the noncustodial parent, or whether that child should be working full time and be self supporting.

This issue is not easily resolvable, and we must look to the facts and circumstances of each case. For example, is the child who is not in college full time capable of being self supporting? Can a child in this category secure a job and earn enough to support him or herself? Will supplemental support from the noncustodial parent be needed? Is the child not seeking a job and not working because the child does not want to or because the child cannot reasonably secure a position?

These and other questions may arise concerning the issue of whether or not a child is emancipated prior to the age beyond which a parent is no longer obligated to support the child.

If a parent believes that a child is emancipated and that the parent should not be contributing money towards the support of that child, a proceeding may be commenced wherein a hearing will be held in order to ascertain whether the child is actually emancipated.

Please contact Wand, Powers & Goody, LLP with any questions regarding the foregoing.