Child Support

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 standing.

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.)