Child Support

In New York, both parents have a legal obligation to financially support a child until the child turns 21 years old. This means that if parents divorce or separate, or if the parents never married, their combined income is used to determine how much financial support is needed to maintain a standard of living for the child that they would have received had the parents stayed together. Typically this means that one parent will need to send money – child support – to the other parent to financially support the child and ensure their needs are met.

The issue of child support must be resolved before a divorce or legal separation action can be completed. If the parents were not married, a child support order can still be sought from the court, but legal paternity must be established for the father. Parents can work together to create a child support agreement that satisfies them both while safeguarding the financial well-being of the child, but to ensure an agreement will be accepted by the court and be enforceable in the future, it must meet specific requirements, and thus is best drafted by an experienced family law attorney, who can also help resolve any disputes that may arise throughout the process.

While calculating basic support in New York tends to be a straightforward process, proceedings themselves can be complex, with child support statutes more difficult to apply in certain cases. Parents looking to secure a child support order may find themselves at a loss about where to start. The most common questions typically involve how to determine who pays child support, what child support covers, how long child support lasts, how to calculate child support, how child support is paid, and how to modify child support when it’s needed.

Child support in New York is typically paid by the noncustodial parent to the custodial parent. The custodial parent (also known as the primary caretaker) is the parent the child lives with more than 50% of the time. (See also: Child Custody and Visitation in New York.)

If both parents share equal time with the child (generally known as joint custody), it still may be possible to secure a child support order. In this scenario, the parent with the higher income will typically pay the other parent some amount of child support. The court may consider a number of different factors when determining how much the child support obligation will be for the higher-income-earning parent, including:

• Substantial disparity between the parents’ incomes
• Nonmonetary contributions, of either parent, for care of the child
• Financial resources of the parents as well as the child
• Educational needs of one or both parents
• Special needs of the child

This list is not exhaustive. The court may consider a multitude of different relevant factors when deciding child support in joint custody scenarios.

Child Support in New York is generally considered to have two separate components: basic support and add-on support.

Basic Support Obligation – This is the first level of support, designed to address a child’s basic needs, including shelter, food, clothing, and basic living expenses. Basic support is calculated as a percentage of the parents’ combined income, based on the number of children covered by the support order, and is typically paid to the custodial parent on a weekly or monthly basis.

Add-on Support – Beyond basic support, the court can also order add-on support. This additional support is designed to address any additional expenses that are specific to the child or children the order is for. Parents are usually required to pay these additional expenses in proportion to their own incomes (also known as a parent’s “pro-rata” share). A court order is likely to address the following add-on expenses:

• Unreimbursed Medical Expenses
• Medical Insurance
• Work-Related Child-Care Expenses

Other additional expenses may also be considered, depending on the child’s specific needs, including:

• Education Expenses
• Extracurricular Expenses
• Travel Expenses
• College

The court has the option but not the obligation to order these forms of additional support. Paying for childcare is likely to be considered more essential than paying for extracurricular activities, but the court will generally work to maintain a child’s standard of living, accounting for any expenses the child would have accrued had the parents stayed together, such as extracurricular activities.

Because parents are obligated to support their children until they are 21 years old, a child support order will be enforced until a child is 21. However, if a child is emancipated before 21, such as by getting married, by joining the military, or by becoming self-supporting, the child support obligation is discontinued.

Calculating child support in New York is a fairly straightforward process. Typically, the basic child support obligation is calculated using a strict formula.

Step 1: Incomes Evaluated – The court will first assess the parents’ combined gross income (less any mandatory deductions), usually by evaluating tax returns (including attachments such as W-2s and 1099s). In addition to wages, the court may also consider other sources of income, such as interest, capital gains, IRA distributions, etc.

Certain taxes may be excluded from income calculation. Additionally, if a parent pays child support for other children not party to the action, this obligation is deducted from the parent’s gross income. Spousal maintenance, if awarded, will also be deducted from the payor’s income and added to the payee’s income.

Step 2: Total Amount of Basic Support Calculated – Once the combined income of the parents is calculated, a fixed statutory percentage determined by the Child Support Standards Act (CSSA), based on the number of children, is applied to that total.

The fixed percentages used to calculate child support are:

• 17% of combined gross income for one child
• 25% of combined gross income for two children
• 29% of combined gross income for three children
• 31% of combined gross income for four children
• 35% (or more) of combined gross income for five or more children (the exact percentage to be determined by the court)

The calculated amount will be the total amount of basic child support for the child or children.

Step 3: Pro-Rata Shares of Income Assessed – The court will determine each parent’s pro-rata share (of income) by dividing each parent’s applicable income by the combined income of both parents.

Step 4: Basic Child Support Obligation Calculated – Once pro-rata shares of income are calculated, the court will then multiply the total amount of basic child support times the paying parent’s pro-rata share of income. This calculated total is the basic child support obligation, usually paid by the noncustodial parent to the custodial parent.

Example Scenario: Pat and Charlie – To illustrate how to calculate child support obligations, we’ll take two hypothetical parents, Pat and Charlie. Together they have two children, who both live with Charlie the majority of the time.

Let’s say Pat makes $65,000 per year, while Charlie makes $35,000 annually. Their combined income is $100,000. Since they have two children, the fixed percentage that will be applied to their combined income is 25%. Applying the fixed percentage, the court would determine the total amount of basic child support for the children to be $25,000 per year.

This $25,000 obligation is split proportionally by the two parents. Pat’s income is 65% of the combined total income. (This is Pat’s pro-rata share of income). This 65% is then applied to the $25,000, making Pat’s basic child support obligation $16,250 each year. Charlie’s yearly basic child support obligation is 35% of $25,000, or $8,750 per year.

As the children reside primarily with Charlie, Charlie is the custodial parent, so Pat will have to pay Charlie $16,250 per year (or $1,354.17 per month) for basic child support, unless the parents agree to something different and/or a court rules otherwise.

While a court order of support mandates a parent to pay child support, it’s not a guarantee that they actually will. But there are systems in place to support custodial parents with child support collection. Once the court has issued a support order, if the parent fails to pay support as mandated, that parent could face serious consequences, including fines and jail time. In New York, a custodial parent has a couple of options for enforcing child support.

Child Support Enforcement Unit (CSEU) – Custodial parents can turn to the local Child Support Enforcement Unit to assist them in collecting child support. While there may be an annual fee to use this agency for child support collection, the CSEU offers a number of different services for custodial parents, including location services, paternity establishment, support establishment, support collection, and support enforcement. The agency can also increase child support with a cost of living adjustment (COLA) without the parents having to go back to court. New York offers this service to all custodial parents, regardless of their income, assistance status, or legal immigration status.

If a parent fails or refuses to pay court-ordered child support, the CSEU can use a number of different administrative procedures to collect overdue support without the need for court intervention. These procedures can include:

• Increasing the order amount
• Seizing bank accounts and tax refunds
• Suspending a driver license
• Reporting delinquency to credit reporting agencies

Court Intervention – If a parent falls behind in their child support payments, the other parent can seek assistance from Family Court by filing a support violation petition. If the court determines that the nonpayment was deliberate, the delinquent parent will be ordered to pay the amount owed and may be forced to serve time in jail, up to six months. If, however, the court determines that he or she had been unable to pay and the nonpayment was non-willful, the court may simply order payment of the overdue support.

When circumstances change significantly in a parent’s life, their child support obligation may need to be reassessed. Say you lose your job. Your ability to support your child will likely be impacted without an income. If you’re the paying parent in the situation, you may find yourself wanting to know how to lower child support to alleviate your financial burden. If you’re the support-receiving parent facing lost income, you may need to know how to increase child support to gain some relief.

When it becomes necessary to adjust support, it may be time to return to court to modify a child support order. Either parent can seek a modification of support, but there are a few requirements that must be met for modification to be ordered by the court.

File a Petition – First, the parent seeking the adjustment must file a petition for modification of the support order. This petition should be filed in Family Court. An attorney can assist with this process and file the petition on behalf of the parent.

Satisfy Conditions – Second, the parent must show that there has been a substantial change in circumstances. This change in circumstances can be anything from increased medical bills for an ill child to drastic changes in a parent’s income. If the support order was entered after October 13, 2010, you can additionally show:

• It has been at least three years since the child support order was entered (or modified)
• Either parent’s income has increased or decreased by at least 15% since the order was issued

If conditions are met and a modification is deemed necessary, the court will readjust support based on the most current combined gross income of the parents and any other relevant factors (e.g., increases in a child’s medical expenses).

Child support may be increased if a paying parent’s income has increased significantly or if the income of the parent receiving support is substantially decreased. The court could also order the paying parent to contribute more if a child’s expenses (e.g., medical, education, or other necessary expenses) have risen. To lower child support, a parent may need to present a case to the court for why the parents’ basic income information doesn’t tell the whole story.

Regardless of your situation, to ensure the most favorable modification possible, it is advisable to work with an experienced family law attorney to represent your child support modification case.

It is generally in a child’s best interests to get the support they need from both parents. New York’s child support standards offer a transparent way to determine child support obligations, but an attorney effective at achieving successful resolutions will get the best results for you and your child.

Ksenia Rudyuk, of Rudyuk Law Firm, P.C., is an experienced family law attorney who has been highly successful in securing favorable outcomes for her clients throughout New York City. With Rudyuk Law Firm, you can rest assured that you’ll have a strong advocate who will fight for your rights and protect your interests while keeping your child front and center.

Call today and see what Ksenia Rudyuk can do to help you with your child support case.