Can New York child support be different than the formula?

The law in New York does contain reasons to deviate from the guidelines amount of child support. The Child Support Standards Act contains a formula, based on income, that dictates what the presumptive amount of child support should be in each particular case.  The law also contains ten reasons that a deviation from the presumptive amount may be ordered.  The reasons may be used to justify an upward or downward departure from the guideline amount. New York State, New York City and Long Island Child Support Lawyers need to consider these reasons when their clients want more or less child support than it would appear that the guidelines would suggest.

The first is that a deviation can be ordered, after a consideration of the finances of each parent, and the children dictates that a different amount is appropriate.  Second, the physical or emotional health and a child’s aptitudes or special needs may suggest a deviation is appropriate.   The third consideration is the standard of living that the child would have lived under if the parental relationship or home remained intact, instead of dissolving.  Tax impacts to both sides are a reason that may be considered to deviate.  Non financial input that the mother or father will contribute to the care and wellness of a child is a permissible reason to deviate.

If either the father or mother has a need for additional education, that may be weighed when deciding if there is reason to deviate from the presumptive amount.  If the total gross income of either party is significantly less than the other parties’, it is one of the enumerated reasons to deviate from the guideline amount.  If the financial resources available to support children living with the payor or that he/she is supporting is less than the children in the subject case, and this support is not a deduction from the income of the non-custodial parent in the subject case, then the needs of these children may be considered when calculating the instant child support order.  Extraordinary visitation expenses (as long as the child is not on public assistance) or extended visitation expenses that significantly reduce the custodial parent’s expenses.  Finally, there is a catch all provision, that a court may order a deviation based on any other factor that it deems relevant.

That is not to say that a trial court can order a deviation based on those reasons enumerated in the statute without oversight by the appellate courts.  Case law helps to dictate what are proper and improper reasons to deviate or not.  For example, the highest court in New York, the New York Court of Appeals has held that shared physical custody alone is not a valid reason to deviate from the guideline amount of child support.  Prior to this decision many courts and lawyers would apply a proportional offset formula.  The right way has been held to still calculate child support with the “monied” parent being considered the non-custodial parent for the child support calculation.

Also, the presumptive amount dictated by the formula, is usually what a court will order.  Just because an allegation is made that one of the factors is present, does not mean that a deviation will be ordered.

If there is combined income in excess of $141,000.00 (this amount changes as time goes on but at the time this article is being composed it is the correct amount) then there is discretion on what amount of child support, if any, should be ordered for the combined income about this amount.  What is the correct amount of income to use in the formula is also often a source of debate.  There is discretion about whether to add certain employment “perks” to income or not.  Also, income can be imputed to someone based on past employment, ability or expenses paid by other people on behalf of the party.

Once income is determined certain deductions are to be made from the gross income.  Some common ones are FICA taxes (social security and medicare taxes), local taxes (New York City and Yonkers), and unreimbursed business employee expenses, however there are others.  The basic formula is that the non-custodial parent should pay their pro-rata share of child support of the combined parental income, up to the first $141,000.00 (again this amount changes from year to year) based on the correct percentage.  The percentages enumerated in the statute are:   17% for one child; 25% for two children; 29% for three children; 31% for four children; and no less than 35% for five or more children.  Whether to apply the percentages or some other child support (if any) for the combined parental income about $141,000.00 should be determined according to considerations also enumerated in the statute, much like the considerations to deviate from the guidelines.  The considerations are different however.

There are many nuances and legal arguments that can be used to shape what ultimately becomes the child support order in your case. This article could not possibly address every situation but was meant to show that the formula is not always straightforward. Income further is not always just what is reported. Other blog entries and our website pages speak about different aspects of child support and family law matter. Give us a call if you would like to talk about your situation. It would be our pleasure to speak with you about the case.

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