For divorcing parents, some of the most common concerns revolve around child support. Because raising a child is tough. And expensive. From diapers, to cheddar bunnies, to school clothes, to college, the cost of raising a child only increases, the longer they’re alive. So, naturally, this can beg some pretty serious questions about where that money is going to come from once the couple is divorced.

The short answer to this is: it depends.

The long answer is, that who pays and how much will depend entirely on your custody arrangement, how many kids you have, the income level of both you and your spouse, and can be altered, capped, or increased based on a number of individualized factors.

For more on this, let’s take a look.

Child Support Overview

In case you weren’t already aware, parenting is a lifetime gig. Divorce might sever your spousal obligations, but your obligation to financially support your children remains in tact. Thus, child support is simply one way for the court to ensure that the financial responsibility of raising the children is shouldered by both parents.

What is Included?

Child support in New York consists of two main items: the basic child support obligation and the mandatory “add-on” costs. Parents can agree to add in any other terms they want, or to deviate (change) from the statutory requirements as they can agree, but the agreement or support order must at the very least address these two items.

Basic Child Support

Basic child support is a set payment (paid typically in line with the party’s pay check) from the non-custodial parent to the custodial parent. In the instance of equally shared physical custody, basic child support is paid from the higher wage earner to the lower wage earner.

The dollar amount of this payment is set out in the Child Support Standards Act (CSSA) statute. It is a percentage of the non-custodial parent’s income. The percentage to be applied is based upon the number of children to be supported. The percentages are:

1 child = 17%
2 children = 25%
3 children = 29%
4 children = 31%
5 or more children = no less than 35%

Be aware that “income” for the basic child support obligation is not a parent’s gross income. Instead, it is their gross income less certain statutorily authorized deductions (typically for FICA taxes, support paid under other orders, etc). Those payments are deducted from the parent’s gross income to arrive at their “net CSSA income.” From there, the appropriate percentage is applied.

For example, if the non-custodial parent earns $50,000 per year and pays FICA taxes of $3,825, then the net CSSA income is $46,175.00. If they have 1 child, then the basic child support obligation is 17% of that number, or $7,849.75 per year.

The determination of a parent’s income can be tricky, especially if they are self-employed, under-employed, or have been out of the workforce for a period of time. If you are concerned that your spouse’s income is lower than reasonable, then it is important to speak with your attorney about your spouse’s work history, history of earning, and employability.

Lastly, be aware that the parents (or a judge) can deviate from the formula above. If the parents agree to deviate, they can do so for nearly any reason. If the judge decides to deviate, it is only after a hearing and the deviation would need to be based upon any or all of the following factors:

• Other financial resources;
• The physical health of both spouses;
• Standard of living enjoyed by the child;
• Any tax consequences;
• The child’s educational needs; and,
• Any obligations the noncustodial parent might have to other children.

Other items to be aware about, in calculating basic child support, is the income cap. The CSSA is automatically applied to the parent’s combined incomes up to a certain income level. This income level changes every few years. It is best to speak with your attorney about how to request that child support be based upon all income, even that which is above the cap.

Mandatory Add-On Expenses

The CSSA requires that the parents share the following expenses: the cost of the child’s portion of the health insurance premium, the child’s uncovered medical costs, the costs for child care required to allow a parent to obtain or maintain employment. Parents can agree to share other costs (such as extra-curricular activity costs) but they are not required to do so.

The add-on expenses are typically shared in proportion to the parent’s respective incomes or in some other way that the parents mutually agree upon. The process of tracking reimbursements can be tedious and time-consuming so many parents use a co-parenting app such as Fayr or Our Family Wizard to help keep these items straight.

Other Details to be Aware Of

In New York, child support payments continue until the child is twenty-one (even if they leave for college), unless they get married, enroll in the military, or otherwise voluntarily emancipate themselves.

In addition, child support is modifiable based upon any of the following events: (1) a change in circumstances after the date of the last order of support, (2) the increase or decrease of either parent’s income by 15% or more since the last order, and (3) the passage of 3 years from the date of the last order. Parents can agree to waive the application of the last two bases for modification but they cannot agree to waive the first basis for modification.

Lastly, be aware that a general provision for child support will not account for college costs. Rather, these expenses are usually addressed in a separate provision of your order. You should be sure to speak with your attorney about whether it is appropriate to include these terms in your order so that you are not prohibited from requesting them in the future.

Failure to Pay Child Support

The parent receiving support is not obligated to “prove” how they are using the support to provide for the children. For this reason, paying child support can be frustrating for some parents. They do not like the idea of providing payment without any proof or assurances that the money will be spent on the children. However, as irksome as this might be, these payments are not optional.

Child support orders are as binding as any other law, and failure to pay can have serious consequences. Some of which might include garnished wages, driver’s license suspension, and in some cases, even jail time.

If there is a legitimate reason you are suddenly unable to make payments, be sure to notify the court as soon as possible, to see if your order can be adjusted.

Two Wrongs Don’t Make a Right

While additional payments might be stressful for a payor, not getting support payments can cause even more strife for a custodial parent and, by extension, a child. And when this happens, a primary parent might find themselves tempted to withhold visitation as a just form a punishment. However—as the saying goes—two wrongs do not make a right.

Parental rights are highly regarded by both state and federal governments, and a parent’s right to access their child is one of them. Courts do not take attempts to subvert these powers lightly—regardless of the cause. If you are having problems receiving full and timely payments from your spouse, your attorney can help you address these issues through legitimate channels.

Lauren L. Hunt: New York Divorce Attorney

Divorce is hard on small humans, and try as we might, it’s impossible to completely shield them from the emotional impact of this life event. However, ensuring that sure your child support arrangement is executed without hassle, is at least one way you can make this new normal a little easier on yourself and, by extension, them.

If you have more questions about child support in New York, and are wondering how these laws might impact your divorce, I want to hear from you. Schedule a consultation by calling the offices of Lauren L. Hunt at (518) 282-7300, or, make an appointment online, and let me help you develop a child support plan that will best meet your family’s individual needs.