LEGAL GUIDE
Written by attorney Gary Burton Port

# New York child support basics

Child support in New York is governed by a formula found in the New York Child Support Standards Act. This act is the same whether you are in the Family Court or in the Supreme Court. The Child Support Standards Act (CSSA for short), support determines child support obligations based upon a percentage of the parents income.

The calculation used to determine child support is simple. First, the parent income for each parent is determined. The only deductions specifically authorized are the Social Security Tax, the Medicare Tax, New York City/City of Yonkers Tax, and if there is a prior child support order. The court is not required to consider rent/mortgage, car payments, utilities or even food.

Once the deductions are determined, the all the parental income is added together. A percentage, based upon the number of children determined. Assume the father earns \$40,000 and further assume that the mother earns \$30,000, then their total income for child support is \$70,000. For this example we already assume that the deductions have already been calculated. As I said above, the child support is based upon percentages, so for one child the percentage is 17; two children it is 25; three children it is 29; and For four, its 31 percent.

\$70,000 times 17 percent is \$11,900. The basic total child support is \$11,900. In order to determine that father’s child support, we next need to calculate the proportion of the father’s income to the mother’s. Here, we take his \$40,000 and have that divided by \$70,000. This gives us 57 percent. Based upon this example, the father’s child support obligation is \$11,900 times 57 percent. The father must pay in support \$6,783 per year.

Now let’s assume that the custody parent (in this case I’ve been using “mother") is not working and so has no income. In that case the father will pay \$6,800 (\$40,000 times 17 percent=\$6,800. Remember: income times percentage. If there were two child it would be \$40,000 times 25 percent or \$10,000.

When we talk of income, we are talking about income from all sources. All income means just that. For example, the courts will even consider disability and pension payments as income for child support. A housing allowance supplied by an employer, such as in the military is considered income. For the service members what that means is that the Basic Housing Allowance is considered income (Although if your child support obligation exceeds your BAH RC/T you will continue to get the BAH at the with dependents rate). If you are living in mom and dad’s house rent free, the fair market value for such housing will be considered income for child support. Gifts are also considered income for child support.

Income for child support can be imputed. Owners of cash businesses are famous for under reporting income. Their income can be calculated for how much they spend. The courts will impute income to a person who reports \$10,000 but spends \$70,00. A person claiming to earn \$10,000 shouldn’t be driving a Lexus or taking expensive holidays. The courts will calculate his true income and use that for child support. For example, I once showed that the father was spending \$75,000 per year. He reported on \$35,000. The court used the higher number to calculate child support.

Hiding income is not enough to escape child support payments.

The Income Deductions Available to Calculate Child Support Payments: Few and Far Between

The legislature has only allowed few Income deductions for child support. Under the CSSA, the courts must give a deduction for social security and medicare. Deductions for support payments to another child if there is a child support order are also allowed. Voluntary payments for another child will not reduce child support but the court may take that into consideration.

Let’s look at an example where the father has three children by two different women: One child by one mother (‘A’) and two by another (‘B’). Mother ‘B’, although her children were born after Mother ‘A’s gets a child support order first. Now, mother ‘A’ goes for a child support order. The father can claim the first order for the two child as a deduction. If he earns \$40,000 after social security and medicare deductions, then he child support should be \$6,800. (\$40000 x .17) But, his is already paying \$10,000. (\$40000 * .25). For child support purposes his income is \$30,000 not \$40000 (\$40,000 – \$10,000). He pays \$5,100 in child support.

There is an income cap of \$136,000 (Department of Social Services has the authority to raise this figure to keep pace with the cost of living), but it is often not honored by the courts.

According to the CSSA the child support percentages are to be applied up to \$136,000 of the combined income of the parents. The statute does allow the court to apply the percentages to income above \$136,000 and it often does. In fact, breaking the cap tends to be the rule, not the exception.

If the combined income of the parents is \$200,000, then the court could find \$34,000 in child support not \$22,100. In order to go above \$136,000, the court must make specific findings. The Child Support statutes lays out a list of factors. The bottom line is that the court will go above \$136,000 if it is in the child’s best interest and generally, will assume so in high income cases. The reason that the \$136,000 is breached is due to the Court of Appeals landmark decision, Casano v. Casano. In that decision the court found, in effect, that application of the \$136,000 cap was discretionary not mandatory. In other words, the court is not bound by the cap, and the custodial parent does not really bear the burden of proving need. In my experience, the non-custodial parent has the burden of proving that the cap should be used.

Can a loss of employment reduce child support payments?

In theory a loss of income or loss of job could reduce child support. The non-custodial parent bares the burden of proving the loss was not his fault. If he lost his job and he must also show that he is looking for a new job. The job must be on the same level as the old job. Therefore, an investment banker can’t lose his job, seek employment flipping burgers at McDonalds and expect his child support to go down. The court may reduce the child support, but only temporarily and then oversee the non-custodial parent’s job search. This could require keeping of a job search diary as well of copies of all applications, resumes and rejection letters.

Too many fathers have deliberately lost their jobs in order to avoid paying child support. This will not work. The courts are very suspicious of claims of lost jobs or decreases in income. If the court believes that loss was intentional, the child support will remain at the same rate. If the parent can’t pay, he can be sent to jail.

Conclusion

This is the basic outline of the New York Child Support Standards Act. Your individual case maybe this simple or more complicated. Please check the posts for more in depth discussions of various child support issues