Whatever the process chosen, be it mediation, litigation, collaborative law, or settlement negotiations certain decisions can be made regarding child support issues for the children. After a divorce, or pursuant to a child support application by the non-residential custodial parent whether married or not, child support is the money that will be paid to the custodial parent, as a method of helping them to pay for reasonable needs, such as food, clothing, shelter, education, health and maintenance. Sometimes, additional support is required to cover extra costs, such as extracurricular expenses, private school tuition, life insurance, college and more. There are numerous important decisions to make when it comes to understanding and arranging child support, and perhaps the first thing that needs to be considered, is how the amount will be determined.
Establishing Child Support Amount
There is a formula used by New York child support lawyers and judges which is set forth in what is called the Child Support Standards Act. The Child Support Standards Act may be found in both the New York Family Court Act and the New York Domestic Relations Law. This formula was designed to provide an insight into the amount a non-custodial parent should be required to pay for child support. The policy behind this statute was to provide standard amounts which people of a similar income should be expected to pay. The decisions that need to be made on child support can range from caps on the income considered, to when it will be paid, how extracurricular activities will be paid for, and how modifications will be made and cost of living adjustments will be dealt with. The first step is to consider each party’s gross income.
There can be various add-ons that are considered in gross income, and once these add-ons are made, each party will be able to claim deductions for the purpose of child support. For example, common deductions include New York City or local taxes, child support for other children or maintenance being paid pursuant to a written agreement or court order, and unreimbursed employee expenses among other items. Once the adjusted gross income has been established, both parties pro-rata amount of income will be determined, which refers to the percentage of total income each party’s income makes up. All of these aspects can be discussed with your mediators and child support lawyers or ultimately a support magistrate or judge can decide the issues.
From there, the combined parental income will be determined and the pro-rate share of child support by multiplying the amount by 17% for a single child, 25% for two children, 29% for three children, 31% for four children, and 35% for five or more children. At this time, there is a presumption that this formula with these percentages will make the correct amount of child support for the first $141,000.00 (this threshold number changes over the years) of combined parental income. It is discretionary whether to apply the percentages or to use other means to calculate the child support, if any, to be paid for any income exceeding $141,000.00. Whether or not to include a cap on the total income that is considered is a decision to be made.
The default language in New York is that children are emancipated at age 21. Language, however, can be included to define emancipation events such as: an older age or completion of college; marriage; living away (besides just to attend school); or becoming full time employed to name the most common. What the allocation for payment of child care expenses to enable the custodial parent to work or go to school for work, summer camp, and extracurricular expenditures may all be set forth. Whether or not the parents should pay for college or private school for the children can be spelled out. Should this expense be pro-rata (according to their respective incomes), split or depending on the financial circumstances at the time? Should there be a SUNY cap for the parents’ payment (even if the child goes to private school or out of state)? Should student loans, financial aid, and scholarships be utilized before the parents pay?
Understanding A/B Expenses
There are numerous alternative methods that can be explored to determine the right child support amounts. I use different approaches in mediation and negotiations. Using guidelines for child support is not the right route for everyone even though the guideline obligation must be spelled out in an stipulation or order. One alternative (and there are many) that has been considered and tested a number of times in mediation, negotiations, and collaborative cases is to simply divide the expenses associated with raising a child into two separate categories. A expenses are for regular, recurring expenses, whereas B expenses are for irregular, non-recurring costs. In this method, the non-custodial parent will be expected to pay a fixed amount on a monthly basis for A expenses, as well as a share of the B expenses. The Child Supports Standards Act in New York do this by separating educational, medial and child-care costs, and having parents share these based proportionately on their incomes.
Decisions on what may be classed as A/B expenses include things such as:
- Utilities (electric, oil, water, gas, telephone, internet, gas)
- Mortgage, rent, real estate taxes, homeowner insurance
- Tuition for school and college including student fees, board, transportation and supplies
- After school programs including clubs and lessons
- Clothing, food, and childcare
- Personal care such as health products, cosmetics and hairdressing
- Family trips, vacations and travel
- Pet expenses, hobbies, weekly allowance
Once both parents have come to a decision on what can be established as an A expense, and what is a B expense, further decisions must be made on how to provide the funding for these different categories. For example, they will need to determine whether A expenses are Pro Rata, or paid on an individual basis. It is also important to decide on a payment schedule for B expenses.
Medical Costs and Child Support
In addition to the basic obligations that take place during child support, parents in New York are also required to consider various decisions associated with the medical costs that their child might need, including who will pay for insurance, who will pay for uncovered expenses, dental costs, prescriptions and glasses. Decisions will also have to be made about the method of dealing with elective procedures such as orthodontia.
Uninsured medical costs can be co-pays, deductibles or items just not covered by insurance. They might be elective procedures under the health insurance plan of a parent. Most child support orders will dictate the exact percentage of unreimbursed and uninsured medical expenses that each party needs to pay. However, absent a specific child support order concerning these particular expenses, additional medical expenses may force the need to change an existing order, through a modification or adjustment.
In other blog articles I go into more details about maintenance and the relatively new temporary maintenance guidelines. But briefly I will touch on some of the issues particularly when children are involved. When one spouse out of a divorced partnership is forced to give up some manner of their earning potential so that they may appropriately care for the children that were conceived as part of that relationship, the other spouse may need to pay maintenance to the other parent to help them become self supporting. In legal terms, this compensation is now regarded as maintenance, or what as it used to be called, “alimony”. In the statute, maintenance payments are to be based on a number of different factors. For example, they may consider how long the couple was married in their decision, as well as the earning potential of each spouse, and their age. Other factors that are considered include the physical and mental health of each partner, how the property in the marriage was distributed and whether any financial misconduct took place.
State laws can vary somewhat widely when it comes to elements that a judge might consider, and how much weight each element will have. However, in New York, the length the marriage has existed for can play a relatively significant role in the final decision. How long maintenance will be paid for is another crucial consideration. Most of the time, maintenance is only paid by one spouse to the other spouse for a temporary term, but sometimes it in rare cases it can be required for an indefinite period of time. Usually, this decision is made according to how long it can reasonably be suggested that it will take for the spouse in receipt of maintenance to enter back into the job market.
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