Child & Spousal Support

Child support in New York is usually paid until a child is 21-years-old if the Order is established by the Court after a trial. There are certain circumstances in which a child may be emancipated before the age of 21, but usually not. Parents are free to agree that child support shall be paid beyond the age of 21 while a child is pursuing a full-time college education, which is often the case as kids commonly reach 21 while in their junior year or early into their senior year of a four-year college program. A judge cannot mandate support beyond 21 unless it is based on an agreement.

A court must determine the basic child support, payable monthly, weekly, or biweekly and also certain add-ons to child support that the law recognizes. Basic child support is payable either direct to the payee or through the Child Support Enforcement Bureau or Support Collection Unit of the County in which the order was rendered. The payee has an absolute right to have support paid through the agency and by garnishment from income, even if the payor has never missed a payment.

The basic child support is intended to cover all expenses of food, clothing, shelter, and all other needs for children that are not covered by recognized add-on expenses under our law.

Certain add-on expenses are mandatory, such as dividing the health insurance premiums for a child’s coverage, dividing health-related costs not covered by insurance, and dividing reasonable child care expenses which enable the primary custodial parent to work or seek work.

Other add-on expenses are discretionary with the court, such as private education costs, college education costs, and costs associated with the special needs or aptitudes of a particular child.

A court will not make any add-on child support designations which are not provided for by law; however, you are free to arrive at other contributions which might be made towards specified costs by agreement, such as extracurricular activities, religious training, cell phone costs, car insurance, and other items.

The basic child support award is arrived at, after trial or by agreement, by using the Child Support Standards Act (“CSSA”). The CSSA is a computation in our law that utilizes the incomes of both parents, certain deductions from income the CSSA recognizes, and the use of percentages for basic child support applied to the combined income depending on the number of children involved (17% for one child; 25% for two children; 29% for three children, etc.).

Usually, parties should expect that the court will apply the guidelines of the CSSA to their combined income up to the cap mentioned in the law which is now $154,000, and which changes every two years with the next change expected in March 2022. While the court can disregard the guideline computation for combined income under this cap, this is rather uncommon. If there is combined parental income above the $154,000, the court is free to exercise its discretion to apply the child support guidelines percentage to some or all of the income over the cap or to decline the use of the percentage and make its determination as to such excess based upon various factors set forth in the law.

To what income does the CSSA apply? By definition, it is income from all sources, which might include, among other things, income shown on a W-2, interest and dividend income from assets, retirement income, real estate rental income after true expenses, the value of certain employment perks, as well as money, goods, or services provided by a third person.

This income for CSSA purposes is reduced by deductions that the law specifies only for this purpose, which include FICA, Medicare Tax, NYC Income Taxes, and spousal support paid to the payee or children of prior relationships based upon a court order or formal agreement.

Often there is a dispute that can only be resolved by the court after trial or by an agreement that concerns the income of each party to which the percentage should be applied. Many people have been known to under-report their income on tax returns, are engaged in cash businesses, or choose to temporarily reduce their income while going through the process to limit the amount of support they might have to pay. A judge can base the child support award on the basis of stated income, based upon the income the judge is convinced the parent has but has not admitted, and in appropriate cases, can even impute income based upon the capacity to earn money regardless of the employment status of the support payor.

If left for the court, a judge will determine how to apply the CSSA. If an agreement is reached by the parties, so long as the parties are properly aware of and the agreement recites the computations that would be used if the award were consistent with the CSSA, the parties can agree to deviate from the specified amount of child support so long as reasons are recited that the Court will approve.

Spousal Support

Spousal support is also known as spousal maintenance. New York provides for spousal support that is rehabilitative and nature. The court is to keep in mind the standard of living that the parties have enjoyed during the course of the marriage in reaching its determination of the amount of spousal support and how long it should be paid.

Toward the end of 2015, the spousal support laws in New York changed. Whether attempting to compute “temporary” spousal support during the pendency of a divorce action or seeking to determine the award that should be made at the conclusion of the case, similar concepts now apply in both situations – which was not the case before the change in the law.

The court will apply a spousal support computation to the incomes of both parties, up to a cap on the support payor’s income of $192,000, unless it determines that the application of the guideline computation is unjust or inappropriate in a given case. If so, the court must consider various factors in arriving at its determination.

In situations where the support payor has income above the cap of $192,000, the court must consider various factors in arriving at its determination. There are 18 factors the court should consider when arriving at a temporary award to be effective during the pendency of a divorce case, and 20 different factors to be considered for a post-divorce maintenance award.

Insofar as the duration of maintenance is concerned, the law contains advisory guidelines only, which indicate that a marriage from 0 to 15 years should result in spousal support for 15% to 30% of the length of the marriage; for marriages between 15 and 20 years in length, spousal support payable for between 30% and 40% of the length of the marriage; and for marriages lasting in excess of 20 years, 35% to 50% of the length of the marriage. A court is free to deviate from these advisory guidelines so long as its discretion is not abused and its reasons adequately explained to enable reasoned review by a higher court if the decision is appealed.