Many divorced parents are confused about how child custody can affect the amount of child support being paid by one parent, especially when the two parents share joint 50/50 custody of their child or children.
The parent who pays child support often wonders why (and if) they have to pay at all, since they’re sharing half the time and half the responsibilities of raising their children. Child support has nothing to do with how much time each parent spends caring for their children, and instead has everything to do with which parent has the higher income.
For example, Larry and Carla divorced two years ago, and they share joint custody of their three children. The kids alternate between one week with Larry and one week with Carla. But Larry, an investment banker, pays monthly child support to Carla, a marketing account manager, even though Carla has her own apartment and makes her own money. That’s because Larry earns more money than she does; even though they split custody evenly, Larry still pays child support.
The child support obligation was mandated under the New York Child Support Standards Act (CSSA), which was passed in 1989. It has a three-pronged formula to calculate the amount of child support owed each month.
- Calculate the combined gross income and each parent’s pro-rate share of the total.
- Use the percentage of total income CSSA says should be devoted to child support (see below).
- Calculate each parent’s share thereof.
And according to CSSA, these are the percentages of total income that should be paid by the “non-custodial parent.”
- 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.
The problem with this formula is that the CSSA does not spell out how this calculation is to be made if custody is equally shared. According to the original act, a parent can’t receive support until they have custody of their children for more than 50 percent of the time.
However, thanks to many challenges to the law, the New York Appellate Court has ruled that the parent who makes more money should pay child support to the parent who makes less money.
Gross income is determined by the most recent federal income tax return, but it can also include workers compensation, disability payments, unemployment benefits, veterans benefits, pension and retirement, fellowships and stipends, and annuity payments.
Gross income, or income in general for support purposes, can also be based upon your ability to earn, your past earnings capacity, or the income being provided by another source such as parents and/or a girlfriend or boyfriend, which can be imputed for child support purposes.
While many couples may want the court to consider different factors in making this calculation, this is where the law currently stands. That is, unless your lawyer can make a compelling case for why the court should apply the statute differently in terms of the amount of gross income, since many courts go way above the cap of parental income (currently $143,000), or to apply what are know as the Sub F Factors for why the court should not go up to the cap of parental income.
Sub F Factors include:
- The financial resources of the custodial and non-custodial parent, and those of the child;
- The physical and emotional health of the child and his/her special needs and aptitudes;
- The standard of living the child would have enjoyed had the marriage or household not been dissolved;
- The tax consequences to the parties;
- The non-monetary contributions that the parents will make toward the care and well-being of the child;
- The educational needs of either parent;
- A determination that the gross income of one parent is substantially less than the other parent’s gross income;
- The needs of the children of the non-custodial parent for whom the non-custodial parent is providing support who are not subject to the instant action and whose support has not been deducted from income pursuant to subclause (D) of clause (vii) of subparagraph five of paragraph (b) of this subdivision, and the financial resources of any person obligated to support such children, provided, however, that this factor may apply only if the resources available to support such children are less than the resources available to support the children who are subject to the instant action;
- Provided that the child is not on public assistance (i) extraordinary expenses incurred by the non-custodial parent in exercising visitation, or (ii) expenses incurred by the non-custodial parent in extended visitation provided that the custodial parent’s expenses are substantially reduced as a result thereof; and
- Any other factors the court determines are relevant in each case, the court shall order the non-custodial parent to pay his or her pro rata share of the basic child support obligation, and may order the non-custodial parent to pay an amount pursuant to paragraph (e) of this subdivision.
If you feel you have an exception that needs to be heard or argued to convince the court as to what support amount is “just and proper” under the circumstances, you should consult with an attorney, and ask them to advocate for you in court.
Levoritz Law Group can help families going through a divorce navigate the system as well as manage the child support process. For more information, or to talk with an attorney, please contact us.