John M. Zenir, Esq.
The amount of child support a court assigns is
never enough or far too much, depending on which side of the dollar you are
If you are thinking of or have already started a
divorce, you probably already know that child support can be agreed upon between
the parties or can be determined by a judge after a trial. Most of the time it
is better to negotiate your own “deal,” since it is rarely pleasant for either
side to leave its financial future in the hands of a judge.
The purpose of this article is to provide you
with a brief description of some of the issues concerning child
support. Please keep in mind that the best input you can receive about child
support is from your lawyer since he/she knows your case.
New York State followed the recommendation of the
Federal government when our state adopted the Child Support Standards Act (CSSA).
The CSSA requires the non-custodial parent to pay a percentage of their income
for child support, depending on the number of children. For example, if you have
two kids, you pay 25% of your income as basic child support. This amount is
payable until age 21 (not 18), unless the child is emancipated sooner. The only
items that get deducted from the payor’s income are Social Security tax,
Medicare tax, New York City or the City of Yonkers income tax, any child support
that is being paid for a child from a prior relationship, and any alimony (now
called maintenance). Federal and State taxes do not come off the
top of one’s income in determining the amount of child support. For example, if
a worker earns $70,000 and is not paying NYC income tax, you deduct 7.65% for
Social Security and Medicare Tax, leaving $64,645, which for 2 children at the
CSSA rate creates a child support obligation of $16,161 per year (25% of
$64,645) or $311 per week.
But the child support obligation does not end
there. The payor must also pay some proportion of medical
insurance, child care, and educational expenses.
Parents are permitted to “opt out” of the above
requirement if there are legally justifiable reasons for doing so.
The “legally justifiable reasons” are in a constant state of flux because they
vary, to some degree, from county to county, from court to court, and from judge
to judge. The case law on these issues is constantly changing, but there are
some general guidelines to consider: Is there any extraordinary expense incurred
by the non-custodial parent in having visitation? Are other expenses being paid
by the non-custodial parent that would make applying the statutory percentage of
child support unjust in this case? Is the income of the custodial
parent such that the court would permit deviation from the CSSA?
Although New York State attempted to simplify the
issue of child support when the CSSA income percentage rule was adopted, the
reality is that paying for the care of a child is not a simple matter when
parents are living together, and divorce creates an extremely complex situation
because the “economics” of living separate and apart is rarely favorable to
either party. The complexity of the problem is further aggravated by the
changing economic and societal needs. Not long ago, nobody paid anything for
health insurance coverage, but today even the most generous of employers often
require an employee contribution. Does the cost to the employee for health
insurance get deducted from child support? The cost of college is escalating
beyond belief. Can child support cease or be reduced when a child is away at
college? More and more parents are sharing “parenting time” on a nearly equal
basis. Can child support be reduced to reflect this? Which parent should get the
tax deduction for the children? Can the deduction be transferred?
These questions are just a few of those that need
to be considered in negotiating or litigating the issue of child support. I have
negotiated and/or tried hundreds of these types of matters. If you have any
questions about child support or other divorce-related issue, please do not
hesitate to call. (John
M. Zenir, Esq.)