Child Support and the $130K Cap

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 $130,000 of the combined income. So, what happens if Dad makes $100,000 and Mom makes $70,000? Will child support be capped at $130,000 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 $130,000 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 $130,000)  or if it chose, to explain, using the 10 factors, why it was going through the $80,000 cap (now $130,000).

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.

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 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 $130,000 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. 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 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 $130,000.)

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 $80,00 cap imposed.

College Tuition

Here’s a quick one: There is no legal obligation to pay college tuition.

This simple statement often upsets one set of parents and makes another set happy. However, under the Child Support Standards Act, there is no requirement that a parent pay college tuition.

The only way to secure tuition is to place the obligation into the divorce agreement. Many times we use what is called the “SUNY CAP.” The SUNY cap is an obligation to pay tuition up to the level of a specified SUNY school. Being based on Long Island, I base it on SUNY Stony Brook, which is about$5,000 a year. Some agreements use the clause “the parents will contribute to college education.” This clause can lead to further disputes down the road. For example, what if the child is accepted to NYU, which is about $37,000 a year? Must Dad shell out $18,500 per year? Good drafting can save future trouble. If you cannot agree on a SUNY Cap, it is perhaps wise to have some other limiting factor.

Child Support -When Each Parent Has a Child

A question which tends to come up is: how does child support work when each parent has one of the children?

Logic would dictate that neither parent pays child support to the other. However, that is not always the case. What actually happens is that the child support responsibility is calculated on both sides, and then we see if the numbers balance.

Let’s look at a couple of examples to see how this actually works.

Example #1: 2 Children. Mom and Dad each take one, and both parents earn $50,000 a year. The child support obligation is not 25 percent, but 17 % for each parent to each child. So, Dad’s obligation to Mom is $8,500 and Mom’s obligation to Dad is $8,500. The numbers balance. No money chances hands.

Exampe #2: 2 Children. Mom and Dad each take one, but Dad makes $75,000 and Mom makes $50,000. Dad’s obligation is $12,750 to Mom and Mom’s is $8,750 to Dad. Dad should pay $4,000 back to Mom. Now, Dad’s lawyer can try to claim that since Dad has custody of one child, he should get a credit. There is support for that position. But, I’ve seen courts not give credit as well.

Frequently, in agreements where the children are split, the parties agree that no money should change hands. However, the court will not accept such an agreement unless the numbers balance. I had a case where Dad was getting two children and Mom was getting one. Mom made more money than Dad. In order to arrange a “no-pay” deal, we worked out a series of “add-ons”. Basically, we said that Mom is paying additional out-of-pocket costs relating to child care, and that should result in no money changing hands.

There was a recent Family Court decision where this issue came up. In a decision published on March 30, 2009 in the Law Journal, Family Court Judge Hanuszcak, Onondaga County, denied a Father’s request for support. Mother originally had both boys. Custody of the youngest was changed to the Father. Mother made $164,000 a year, and due to the economic downturn, Father was only making $32,000 down from $95,000. The court denied his motion to compute child support for an amount below $32,000. The court further denied his motion for child support from the mother.  The monthly child support on $165,000 should have been $2323.23 a month. With Father’s child support obligation of $453.33, the offset would have been $1869.90. However, the court stated that because the Mother (1) purchased a car for the child; (2) paid for the gas; (3) paid for the auto insurance (4) paid for the child’s cell phone; and (5) provided medical coverage, the Father was not entitled to child support.

Landmines In Child Support Part 1

A legal landmine is a mistake that I see people repeatedly make. The mistake is made because the person doesn’t realize he is making it, until it is too late. In New York family law and divorce law, there are several such landmines. In this post I will discuss the landmines in Child Support.

The one I see most frequently is failing to follow a court order of child support. At first blush, that may seem odd. How can some violate a support order and not realize it? Well, unfortunately, all to easily because a lot of people do not understand the nature of a court order.

Here’s how it normally plays out: Father is ordered by a court to pay $1000 a month in support. He does so for a while, then, he loses his job, get sicks or something else happens which makes it tough if not impossible for him to make his support payments. He goes to the mother and explains the situation and she agrees to take less, say $500 a month. They shake on the deal, and he now pays $500 a month, thinking all is good. A while later he gets served with papers for violating the court order. Not only must he pay the full $1000 a month, but he owes arrears on the time he was only paying $500. He’s shocked by the injustice: she agreed to the deal. The judge doesn’t see it that way, and the order for arrears is entered.

The problem that he didn’t understand is that a court order is just that: an order of the court. The mother has no authority to reduce the support. She cannot legally agree to lowering the support. Even if she put it in writing, he would still have to pay the full amount. In New York family and divorce law, once a court order is in place the only person who can modify the order is the judge (or family court support magistrate.) So, even if the parties have an agreement, the custodial parent can walk into divorce or family court and demand payment of the arrears and the court will grant it.

The only way to reduce the support payments is to go back to court and request it. In order to get a reduction, the non-custodial parent must demonstrate that there has been a unforeseeable change in circumstances. The court is very wary of guys claiming reduced income or to have lost their jobs. The court frequently sees guys voluntarily reducing or even hiding income to defeat the court order. However, I’ll get into reductions in another post. For now, the lesson is simple: once the court order is in place, obey it until you get another court order.

Parental Alienation

Recently, Judge Richard Lawrence, Family Court, Nassau County, noted in Matter of FS-P v. AHR, published in the New York Law Journal on August 31, 2007, that “a court may suspend a non-custodial parent’s duty to provide child support after a finding that the custodial parent has willfully denied or interfered with visitation or has engaged in ‘parental alienation.’”

At issue in this case was whether the father could raise parental alienation as a defense before there was a support order. The father was seeking to invoke this defense to the mother’s request for an order of support. Judge Lawrence recognized that after an order is issued, the court can relieve the father of the responsibility if there is interference with child visitation. But, can the father raise it as a defense to prevent an order from being issued in the first place? In this instance, the Judge said it is a defense.

A couple of points: (1) If there is a support order in place, I’d strongly advise against stopping the payments if there is game playing on the visitation. As long as there is a court order, it must be obeyed. If there is game playing on the visitation, then the remedy is to go to court and ask to Family Court judge to suspend support.

(2) If there is are no orders of visitation or support, and there is game playing on visitation, please don’t get mad, don’t do something foolish. While you could try and rely on Judge Lawrence’s decision, the better option is just go to the Family Court and make out a petition for visitation.

(3) Parental alienation is a big topic and I’m leaving that for another post.