Child Support and the $136K CapSeptember 4, 2011 - Author: Gary Port - No Comments
Child support in New York is based upon the Child Support Standards Act, which is found in both the Domestic Relations Law and the New York Family Court Act.The basic rule is that child support is based upon a percentage of the combined incomes of the parents. The percentage is to be applied to the first $136,000 ( this number is periodically updated) of the combined income. So, what happens if Dad makes $100,000 and Mom makes $70,000? Will child support be capped at $136,000 or will the court apply the child support percentages to the full $150,000?
If you read the statute, it would seem that the court can only break the $136,000 cap only if it finds some of the 10 factors listed in the statute. However, that is not the case. In 1995, Chief Judge Kaye issued a decision, Cassano v. Cassano 628 NYS2d 10, where she interpreted the statute differently. Judge Kaye found that the statute allowed the court to simply apply the percentages to all income regardless of the $80,000m (it was an $80,000 until recently changed by statute to $136,000) or if it chose, to explain, using the 10 factors, why it was going through the $80,000 cap (now $136,000).
I will not debate the question of whether the decision was right or wrong. Since it was issued by New York’s top appellate court, it is the law unless the court reverses itself, or the legislature passes a law reversing the decision.
What I will discuss is the practical impact of the decision.
PLEASE NOTE: This section was written when the cap was $130,000 is now $136,000. The concept for the division remains the same.
Assume that Dad is the non-custodial parent. He makes $100,000 and Mom makes $40,000. They have two children, so the child support percentage is 25%. Twenty-five percent of $140,000 is $35,000. If the court applies the $130,000 (now $136,000) cap, the total combined child support obligation is $32,500. The total income is $140,000. The proportion between the parents’ income is 71/29. Dad pays 71 percent of $32,500 or $23,075. Now, assume the court does not apply the $130,000 cap. Dad pays 25 percent of $100,000 or $25,000.
Most people believe that the courts will blow through the $136,000 cap without a backward glance. In fact, that has been my experience. However, that is not always the case. For example, let’s look at two scenarios which had two very different outcomes. In the first, the father testified that he paid support for his two children. He disputed the mother’s need for money above the $130,000 (now $136,000). He argued that she did not establish any basis, as set forth in the 10 factors as to why she needed to have the $130,000 (now $136,000) waived. He lost. In the other, the father testified that he paid support. That he voluntarily supported a child he had with another woman. He picked the children up from school 2 to 3 times a week and cooked supper for him. The mother admitted that he bought clothes and paid half of money she spent on the children’s clothing. The mother had been taking the tax credit/deduction for the last 9 years and would continue to do so in the future. And, the hearing officer made significant note of, when he had his children, he did activities with them. The hearing officer was particularly impressed that the chore of getting haircuts always fell to the father. Here, the court did not breach the $80,000 cap ( I did this case before the cap was raised to $136,000.)
The lesson is clear. If the father can make an affirmative showing that he is involved, that he pays monies above and beyond child support and that he is not getting the tax deduction, then he has a decent chance of having the $136,00 cap imposed.