Long Island Family Lawyer
Child Support Information
The law provides that both parents must share in the financial responsibility of raising their children until they reach 21 or are sooner emancipated. State guidelines determine the amount of "basic" or weekly child support that a Court will order a non-custodial parent to pay to the custodial parent.
The Child Support Standards Act (CSSA) is the name given to a set of laws that contain a formula for calculating child support. The laws can be found in Section 240 of the Domestic Relations Law and Section 413 of the Family Court Act. The CSSA establishes child support amounts that allow children to have an appropriate standard of living, based on combined parental income as both parents have an obligation to support their children. The amount of court-ordered child support is determined by applying a percentage to the incomes of both parents, according to the number of children in the family. In addition to earnings reported on the most recent Federal Income Tax Form, income will include workers' compensation, disability benefits, unemployment insurances, social security, veteran's benefits, pension and retirement benefits, fellowships and stipends, and annuity payments, as well as certain investment income. The court may also include or impute income from other sources to a parent.
Common Questions About Child Support
Once the combined parental income is determined, the law provides that the non-custodial parent will be required to pay the following percentage as and for child support from income from all sources unless the judge or the support magistrate finds that it would be unjust or inappropriate or if the parents can agree to a different amount so long as their agreement is properly made. The standard child support percentages as set forth in the CSSA are:
- 17% for one child
- 25% for two children
- 29% for three children
- 31% for four children
- No less than 35% for five or more children
Must the CSSA be used by the Courts?
Yes. All child support orders made by the Courts must be decided by using the CSSA. The formula amount must be ordered unless the Judge or Support Magistrate finds it would be "unjust or inappropriate."
How is the amount calculated?
On January 31, 2012, the Social Services Law III - i(2)(b) was amended to reflect the CPI-U index. Child support is now based on combined parental income up to $136,000.
After the Judge or Support Magistrate determines the income of both parents and makes the deductions allowed by law, the incomes are added together to get the "combined parental income." Next, the Judge or Support Magistrate selects a percentage based upon how many children in the household need to be supported.
The combined parental income is multiplied by this percentage, and the amount is divided between both parents according to their incomes. Where the combined parental income exceeds the level set and published by New York State, the Judge of Support Magistrate may decide, instead, to apply the percentages to the total combined income. The level set as of 2012 is $136,000, which is an increase from $130,000 previously used. Levels are subject to change every two years and will be posted on www.otda.state.ny.us.
This amount, plus the cost of health insurance coverage, child care, health related expenses that are not covered by insurance, and appropriate education costs, is called the total child support obligation. Unless the Judge or Support Magistrate has a reason to change it, the non-custodial parent will be ordered to pay his or her share of this amount to the custodial parent.
How is income determined?
All types of income must be considered, not just income reported to the Internal Revenue Service. Some sources of income are:
- Wages, dividends, interest, business investment income and capital gains.
- Voluntarily deferred income or compensation.
- Most cash benefits: Workers Compensation, disability (both private and government), Unemployment Insurance, Social Security and Veteran's benefits, but not Public Assistance or SSI.
- Pensions and retirement benefits.
- Fellowships and retirement benefits.
- Annuity payments.
The Judge or Support Magistrate can also include other or potential income, such as:
- Money, goods or services provided by friends or relatives.
- Fringe benefits or employee compensation (such as meals, lodging, memberships or automobiles) which can result in personal economic benefit to the parent, self-employment or business deductions which actually reduce personal expenditures.
Finally, the Judge or Support Magistrate need not be bound by a parent's claimed income, but may determine income (this is called "imputing income") based on a parent's former income or resources, or base on a parent's ability to earn.
Are deductions from income allowed?
Yes. These deductions will be made from income before the formula is applied:
- FICA (social security and medicare) taxes.
- New York City or Yonkers income or earning taxes.
Child Support paid on behalf of another child and alimony or
maintenance paid to a former spouse, if the payments are made due to a written agreement or Court order.
- Alimony or maintenance paid, or agreed to be paid, to the other parent, as long as the agreement or order provides for an increase in child support when the alimony or maintenance payments end.
- Unreimbursed employee business expenses, unless they reduced personal expenditures.
Can child support be ordered from one-time income?
Yes. The Judge or Support Magistrate may order a parent to pay a portion of money received from a non-recurring (one-time) source, such as:
- Life insurance policies.
- Discharges or indebtedness.
- Recovery of bad debts and delinquency accounts.
- Gifts and inheritances.
- Lottery winnings.
What about child care, medical insurance and education expenses?
The Judge or Support Magistrate must enter an order that:
- Requires either parent to provide health insurance benefits for the children if they are reasonably available and accessible and that the cost of the insurance be prorated between the parents. Health insurance benefits are available if the cost of the benefits for the children do not exceed 5 % of the combined parental income and if the children live within 30 miles or 30 minutes of the provided services.
- Requires, if there is no private health insurance available, that a cash medical support obligation may be established against publicly provided insurance.
- Requires that reasonable health care expenses not covered by insurance be prorated between the parties.
- Requires that reasonable child care expenses while the custodial parent is working, attending school or receiving vocational training which will lead to employment be prorated between the parties.
The Judge or Support Magistrate may also order the non-custodial parent to provide or pay for:
- Accident insurance on the life of either parent.
- Child care expenses while the custodial parent is looking for work.
- Child's education expenses.
Can the Judge or Support Magistrate order a different amount?
Yes. If a parent thinks the formula amount is not enough or too much, he or she may ask the Judge or Support Magistrate to raise or lower the amount using these factors:
- Financial resources of both parents and child.
- The child's physical and emotional health, special needs and aptitudes.
- The standard of living the child would have had if the marriage or household had not split up.
- Tax consequences.
- Non-monetary contributions a parent makes toward the child's care and well being.
- Education needs of either parent.
- A substantial difference in gross incomes of both parents.
- 8. Needs of other children of the non-custodial parent, provided the financial resources available to these children are less than are available to the children requesting support.
- Extraordinary visitation expenses or expenses of extended visitation if, as a result, the custodial parent's expenses are substantially reduced. (This factor may not be considered if the child is receiving public assistance benefits.)
- Any other factor the Court thinks is relevant.
If the Judge or Support Magistrate does not order the formula amount, he or she is required to write in the order the formula amount and why it was not ordered.
Does a parent with very low income have to pay the full amount?
No. The formula for CSSA reduces the amount required to be paid by a non-custodial parent with a very low income.
Does the CSSA apply to temporary orders?
Yes. The law requires the Judge or Support Magistrate to make an order for temporary child support. If there is sufficient information available at the time the temporary support is requested, the order can be made through the method established by the CSSA.
Can an order be changed later?
Among the many significant legislative changed enacted in 2011 is the "Low Income Support Obligation and Performance Improvement Act". It adds new bases for modification of child support orders as follows:
(A) three years have passed since the order was entered, last modified or adjusted; or
(B) There has been a change in either party's gross income by fifteen percent or more since the order was entered, last modified or adjusted.
Yes. An order can be increased or decreased (modified) if the Court finds generally that there has been a change in the parents' circumstances since the prior order was established. If you are seeking a modification due to a job loss or otherwise, you should file a petition as soon as possible, since relief is retroactive to the date of the filing. It may be more difficult to modify an order based upon an agreement than one which resulted from a decision after trial, as the standard for modifying an agreement is an unanticipated change of circumstances and the standard for modifying an order after a trial is a substantial change in circumstances.
Where an order is more than two years old and it is being enforced by a local child support collections unit ("SCU"), either parent may request that the order be reviewed for a possible cost of living adjustment.
Can parents make their own agreements?
Yes. Parents may enter into agreements which provide for more or less child support than the formula amount as long as the agreement and order meet these requirements:
- The agreement must contain a statement that both parents are aware of the provisions of the CSSA.
- If either or both parents are not represented by an attorney, the unrepresented parent must be given a copy of a chart that shows the formula amount.
- The basic child support obligation must be stated in the agreement and the order.
- If the amount agreed upon is different from the basic child support obligation, the reasons for the different amount must be stated in the agreement and the order.
Parents are not obligated to apply the CSSA to calculate New York child support. They can calculate New York child support in any manner that they choose by entering into a voluntary agreement. A Court cannot determine New York child support on any methodology other than the CSSA.
If the parties agree to an amount of New York child support that they arrived at by a method other than the CSSA, it is important that they state why they are deviating from the CSSA. That statement must be in a written agreement or an oral stipulation entered into in open Court and recorded by a Court Reporter. The agreement must state that the parties have been advised of the terms of the CSSA and that application of the CSSA would "presumptively result in the correct amount of Child Support".
Any agreement that deviates from the CSSA must contain two other very important provisions. The agreement must state what amount of New York child support would have been paid pursuant to the CSSA if the parties followed the CSSA. It must also state in detail the factual reasons for the parents' deviation from the CSSA.
Contact a Long Island family attorney from Meyers Law Group P.C. to discuss your situation with a skilled member of our team!