New York Child Support Guide – Everything You Need To Know
Most parents going through a separation or divorce, whether in mediation, Collaborative Law, or court-based litigation, are aware that some form of child support payments will be warranted in their case – if they have children under 21. But the details of exactly what amount of child support to expect can get confusing.
This Child Support Guide aims to walk you through the basics of calculating child support in New York State and leave you feeling comfortable and confident in understanding New York divorce law. This post will cover the basic definition of child support and all other aspects. We will focus on understanding and calculating the basic child support obligation. Then we will move on to the “add-on” or special support categories of child care, health care, and educational expenses.
Getting Started
Before we get started, I need to give the standard attorney disclaimer. Because I’m unfamiliar with the intricacies of each reader’s situation, this information is meant to be a general primer and is not tailored to your particular circumstances. It shouldn’t be taken as any legal advice. Please, please, please, don’t take this as legal advice!
I’ve seen with my clients that a basic understanding of what the law says can go a long way to quelling the natural anxieties in a family law case. I know that family law topics like child support can feel overwhelming because of the close family relationships and intense emotions involved. If you’re facing a child support issue in your family, the more confident and comfortable you feel about how it works, the better, so let’s get started.
What is Child Support?
By “child support,” I mean payments by a parent on behalf of a child, usually until that child turns 21 (in New York – 18 in many other states). These payments are generally non-taxable to the recipient parent and non-tax deductible to the payor parent.
I find it helpful to think of a child support award comprising two parts. The basic child support obligation is intended to cover expenses like food, shelter, and clothing for the child. Basic child support is usually paid from one parent to the other to help support the child in the recipient’s home. Then, the “add-on” categories within the award include child care, health care, and educational expenses. These add-on expenses are often paid to a third party, such as a doctor, babysitter, or tutor. You’ll probably have a basic child support obligation, and I’ll cover that topic in more detail later. What happens with the add-on categories is also predictable but will vary more in response to your family’s particular situation.
You Can Decide The Right Child Support Award
The law allows parents to decide how to support their children within certain parameters. This means you do not have a court to resolve child support or other family law matters. You can reach an agreement outside of court. You also do not have to abide by exactly what a court might have done in your case. You can come up with your own tailored solution.
When people cannot agree about child support and look to a court to decide for them, New York State statutes and caselaw apply. In those cases, the law tells the judge how to calculate child support for the parties before them.
Many, probably most, of my clients who are separating or divorcing in a mediation or Collaborative Law process choose to fashion their own child support award. Many parents in a litigation process – over 90% of whom settle before trial – will also fashion their own award. The reasons for doing this could (and may one day) fill up an entirely different blog post.
Still, to fashion your own child support award, you have to make a knowing waiver of what you otherwise likely would have received or paid in child support had you handled your case in court. That means you need to understand what a court-ordered or statutory amount of child support would be – or as close an estimate as possible – before you can opt for a different amount better suited to your particular situation.
Whether you’re planning on going to court or making your own independent agreements about child support in a settlement-focused process (like mediation or Collaborative Law), you still need to understand what would likely happen in court.
Summarizing
So, to summarize what I covered above:
- Child support = payments by a parent for a child’s support in one of two primary categories: (i) the basic support obligation or (ii) additional (“add-on”) or special areas of health, education, and child care.
- The law allows you to make your own decisions about child support. You don’t have to go to court and have a judge decide. But you need to understand what would happen if you went to court.
The Basic Child Support Obligation
What is the basic child support obligation?
The basic child support obligation is the initial part of a child support award. It ensures that both parents contribute to their child’s care and support. The basic child support obligation is intended to cover expenses like food, clothing, and shelter for the child.
How does a court calculate the basic child support obligation?
A court’s calculation of the basic child support obligation is a function of the parents’ income and the number of children in the family.
Parental Income
Parental income is the court’s most influential factor in determining the basic child support obligation, so let’s begin understanding it.
Combined Parental Income & Parental Income Ratios
To determine child support, a court must calculate: (i) the combined parental income and (ii) the proportion or ratio of each parent’s income to the combined parental income.
Calculating combined parental income is pretty straightforward. You add each parent’s income. So, if Mom’s income is $200k, and Dad’s is $100k, the combined parental income is $300k.
You can calculate each parent’s portion of combined parental income using the numbers above. In this example, Mom’s portion of the combined total is 67% (i.e., $200k of $300k), and Dad’s portion is 33% (i.e., $100k of $300k).
The above calculations are simple, but knowing what counts as parental “income” for child support purposes is more complex.
What counts as parental income for child support purposes?
When calculating parental income, we’re working with adjusted gross income. The biggest mistake I’ve seen clients make in this area is to assume that support is calculated from their net or after-tax (i.e., take-home) income. Not so. Instead, a court looks at each parent’s gross income (as defined by New York statute) and subtracts allowable deductions (also defined by New York statute) to arrive at an adjusted gross income for each parent.
(Gross Income) – (Allowable Deductions) = Adjusted Gross Income. (The child support law refers to this amount simply as “income.”)
What counts as gross income?
The baseline for determining a parent’s gross income is what that parent-reported on their most recent tax return (presuming correct reporting). To the extent not included on that tax return, the law highlights additional categories of gross income-for example, investment income, unemployment benefits, and pension benefits. At the court’s discretion, gross income may also include more abstract concepts like employment perks that cover personal expenses (e.g., meal reimbursement) and/or sums of money or services a parent receives from relatives or friends. For a complete list of sources of gross income, see Domestic Relations Law § 240 (1-b).
Here’s an example
Mom works at a large law firm and receives a bonus and base salary. When she works late or over the weekends, the firm covers the cost of her meals. Mom also owns a condo in Stowe that she rents throughout the year. Dad works as a graphic designer and dabbles in e*Trade. Dad’s parents contribute about $100,000 per year to help the family cover the cost of private school tuition for their children.
In the above example, Mom’s base salary and bonus would be included in her gross income tally, as would the income she clears from her Stowe rental (as reported on her taxes). Dad’s salary as a graphic designer and his investment income (as reported on his taxes) would be included in his gross income tally.
It would be up to the judge’s discretion whether to assign a value to the meals Mom gets covered through her work (to the extent they reduce expenditures she otherwise would have had) or to the contributions Dad has historically received from his parents. Given the significance of Dad’s parent’s financial contribution to the family, it is likely that a judge would impute at least some of that amount to Dad as income. If Mom only has the occasional meal covered by her employer, the value of that particular perk is not terribly high, and the court may not deem it worthwhile to include it as income. In contrast, if Mom’s employer paid for her car each month, that might be another story…
What counts as an allowable deduction?
New York child support law describes in detail the kinds of deductions that are permitted in calculating parental income. A few of the key deductions to be aware of are (i) FICA (Social Security and Medicare) and NYC/Yonkers taxes paid; (ii) child support being paid for another child; (iii) alimony being paid to a former spouse; and (iv) certain unreimbursed business expenses. A parent should consult with an attorney specializing in New York family law to learn what other deductions he or she might be entitled to.
In summary
- Parental income is a key component in calculating the basic child support obligation. Two especially important numbers are:
- the combined parental income; and
- the proportion/ratio of each parent’s income to the combined parental income.
- Combined Parental Income = one parent’s income + other parent’s income.
- Parent’s Income = (parent’s gross/pre-tax income) – (allowable deductions).
- Parent’s Gross Income = (all income parent reported on tax return) + (additional categories created by law).
- Allowable Deductions = (FICA) + (child support being paid) + (alimony being paid to a former spouse) + (additional categories created by law).
Determining what counts as income and allowable deductions for child support purposes is the most difficult part of calculating the basic child support obligation. Once those numbers are clear, the rest of the calculation is simple arithmetic.
What Is The Basic Child Support Obligation? (A Recap)
The basic child support obligation is the initial part of a child support award. It ensures that both parents contribute to their child’s care and support. The basic child support obligation is intended to cover expenses like food, clothing, and shelter for the child. A court’s calculation of the basic child support obligation is a function of two things: the parents’ income and the number of children in the family.
Child Support Percentages
How does the number of children in the family impact the basic child support obligation?
The law assigns a child support percentage based on the number of children in a family (up to 5+). For 1 child, it’s 17%. For 2 kids, it’s 25%. For 3 kids, it’s 29%. And so on. The corresponding child support percentage is then applied to the combined parental income to develop the basic child support obligation.
Calculating the Basic Child Support Obligation
How exactly is the child support percentage applied to the parental income?
In applying the child support percentage to the combined parental income, it helps to think of the parental income in two portions: (i) the portion that is at or below $148,000 and (ii) the portion that is above $154,000. (Be aware that $154,000 is a number set by statute and subject to increase every other year.)
Combined Parental Income At or Below $154,000
The law is very clear for the portion of combined parental income at or below $154,000. You apply the corresponding child support percentage to the lower $154,000 or the combined parental income. Let’s use our example case from my previous post and assume that the couple has two children. The corresponding child support percentage is 25%. When applied to $154,000 (i.e., the lower of $154,000 or the couple’s $300,000 in combined parental income), it gives you the first part of the basic child support obligation: $38,500.
The law apportions pro rata shares of responsibility for that $38,500 between the parents. Mom earned $200,000 per year in our example couple, and Dad earned $100,000. Thus, Mom would be responsible for 67% of the first portion of the basic child support obligation, and Dad would be responsible for 33%.
Child support payments are made from the parent with whom the children spend less time (the “non-custodial” parent) to the parent with whom the children spend more time (the “custodial” or “residential” parent). In cases where the children split their time evenly between households, the higher-earning parent pays the lower-earning parent. Thus, if the children primarily lived with Dad, Mom would pay him 67% of $38,500, or $25,795 per year, to Dad. Dad would not need to pay himself his 33% responsibility for the basic child support obligation, or $12,705 annually.
Combined Parental Income Above $154,000
The combined parental income of our example couple is $300,000. We’ve already applied the child support percentage to the first $154,000 of income, and $38,500 (or 25% of $154,000) is now considered part of the basic child support obligation. We’ve got $146,000 of combined parental income left to account for.
For that additional $154,000, the court has more discretion than it does with the first $154,000 of combined parental income. This means that the results are slightly less predictable. The court has the discretion to apply the same percentage (in this case, 25%) to the remaining combined parental income, or to a smaller portion of that income, or to come up with an entirely separate amount of child support due based on consideration of about ten different factors spelled out in the law.
Parental Income Cap
If you and your spouse have $1,000,000 combined parental income and two kids, will the court apply 25% to $1,000,000 and find a basic child support obligation of $250,000 annually? Very likely not.
It is common practice for courts in New York to assign a cap to the combined parental income – sometimes even high into the mid-six figures – and to apply the appropriate child support percentage up to that cap.
In our example case, with a combined parental income of $300,000, the court might set the cap on combined parental income to around $225,000. (It might also set the cap higher or lower than $225,000. This is impossible to predict with perfect accuracy!) It would then apply the child support percentage (25%) to the remainder of that number above $154,000. $225,000 minus $154,000 = $71,000. The resulting number, $17,750 (25% of $71,000), would be added to the basic child support obligation of $38,500 from above.
So, the first portion of the basic child support obligation would be $38,500 (25% of $154,000), and the second portion of the basic child support obligation could be an additional $17,750. Mom’s responsibility to Dad would be 67% of that latter number, or $11,892.50.
In the end, assuming the children reside primarily with Dad and Mom is the child support payor, she would owe Dad $37,687.50 per year as her share of the basic child support obligation. The first $25,795 of that number is easy to predict. The latter is up to the court’s discretion, and $11,892.50 would be a reasonable estimate based on our example couple’s finances.
Under New York law, the basic child support obligation is not expected to cover every expense in a child’s life. There are three special areas of expenses that the law individually breaks out and accounts for in the calculation. They are child care, health, and education.
Additional (“Add-On”) Categories
Mandatory Child Care Expenses
A court must make certain kinds of childcare expenses part of the child support award. There are where the “custodial” or “primarily residential” parent has childcare expenses as a result of (i) working, (ii) receiving primary or secondary education, or (iii) receiving post-secondary or vocational education that the court determines will lead to work.
The court must assign responsibility pro rata between the parties based on their respective incomes for these expenses. In addition to the basic support obligation, this is another area where the ratio of each parent’s income to the combined parental income is significant.
Using our example couple from previous posts, Mom earns $200,000 yearly, and Dad earns $100,000 yearly. Assuming that Dad is the primary residential parent, let’s say he has a full-time nanny caring for the two children from 9 am to 5 pm, Monday through Friday, so that he can work. The cost of the nanny is $2,400 per month. Generally speaking, Mom would be responsible for $1,600 (67%) per month of the nanny expense, and the remaining $800 (33%) would be Dad’s responsibility.
Two important points to remember. First, the court will only award pro rata responsibility for what it considers a reasonable amount of childcare expenses. So, if Dad were employing his mom to care for the children and paying her $50/hour, much higher than the going rate for child care in New York City, the court wouldn’t order pro rata reimbursement for the full expense Dad incurred. Instead, it would determine what it deemed a reasonable childcare expense and apportion responsibility for that expense.
Second, the court will only order reimbursement for childcare expenses actually incurred. Going back to the example of Dad having his mother care for the kids, if Grandmom cares for the children at no expense to Dad, the court will not order Mom to pay Dad her pro rata share of what a reasonable child care expenses would be and let Dad pocket the savings.
An interesting question arises when the custodial parent wants to return to school or get additional training and will have childcare expenses. If the sought-after training or education has no link to the custodial parent getting work, the court won’t assign pro rata responsibility for it to the non-custodial parent. Often, education or training will arguably make the custodial parent a more attractive job candidate or eligible for a higher salary level. In these cases, the court will determine whether there is enough connection between the education/training (and reasonable child care expenses incurred) and the custodial parent’s future employment to warrant the assignment of pro rata child care responsibility to the non-custodial parent.
Discretionary Child Care Expenses
If a parent is looking for work and incurs child care expenses to do so (e.g., to be able to go on interviews), the court may assign responsibility for a portion (or all) of that expense to the non-custodial parent. But it is up to the court whether or not to do so. As mentioned above, the amount of the expense would have to be reasonable and actually incurred by the non-custodial parent.
In a New York divorce or child support case, a court must determine the parents’ responsibility to provide health insurance benefits for the children and their respective responsibilities for payment of health insurance premiums and unreimbursed medical expenses. Please note that this blog post is focused on families whose children are covered by private insurance plans as opposed to those covered by government-sponsored plans.
Provision of Health Insurance Benefits
If a parent’s health insurance plan already covers the child, the court will order that coverage continue unless either parent requests a change. If either parent requests a change in coverage, the court has the discretion to order that the child be covered by either parent’s (or both parents’) insurance, depending on the circumstances of the case.
Where the child isn’t yet covered under a health insurance plan, but one or both parents have health insurance available to them, the court must order that one or both parents cover the child.
Payment of Health Insurance Premiums
The cost of providing health insurance benefits is shared pro rata by the parents based on their income. If the custodial parent provides the insurance, the non-custodial parent’s share of that cost is added to the basic child support obligation. If the non-custodial parent provides the insurance, the custodial parent’s share of that cost is subtracted from the basic support obligation.
Payment of Unreimbursed Medical Expenses
Even when a child has full health insurance coverage, many health-related expenses may not be covered, partially or entirely, by insurance. When that happens, one or both parents incur “unreimbursed medical expenses.” The court assigns each parent a pro-rata percentage of responsibility for all reasonable unreimbursed medical expenses as part of the award.
As with child care, a court only orders parents to share responsibility for reasonable health care expenses. This means that a parent who incurs medical expenses a court might deem unreasonable and who does so without the knowledge and consent of their co-parent is at risk of shouldering those expenses alone.
Educational Expenses
The cost of a child’s education – be it for private school, college, tutoring, extracurricular activities, or other expenses – may be the single most daunting category of expenses facing most parents. New York law leaves courts much room to do as they see fit in each case, to apportion educational expenses if and when it serves the children’s best interests.
This level of discretion makes it hard to predict with certainty how the educational expenses in any particular case will be handled. As distinct from health care expenses, for example, the court may but does not have to assign responsibility for college (or any other educational expense) pro rata in accordance with the parents’ individual incomes. It could assign responsibility 50%-50%, even where the parents are not equal earners. It could assign 100% responsibility to one parent when he or she is not the only earner. Most importantly, the court does not have to assign responsibility for educational expenses at all, or for the entirety of educational expenses incurred.
This flexibility is meant to allow courts to make child support awards that consider the uniqueness of each family’s circumstances. Where private schools, sailing lessons, camp, and/or year-round tutors are the status quo for one family, that level of expenditure on the children might be unreasonable and unsustainable for another family. To the extent possible – and in divorce, it is not always possible – the courts will try to protect the lifestyle a child has grown accustomed to during the marriage.
How can we help?
To learn more about child custody and child support or get answers to your divorce questions, contact Miller Law Group for a consultation today.
