As of August 15, 2010, a custodial parent can petition for a modification of support every three year or if there is a 15% change in income. This only applies to support orders/judgments of divorce signed after the effective date of the statute.
The New York Child Support Standards Act
Before New York had the Child Support Standards Act, determining child support could be largely guess work. Under the Child Support Standards Act (CSSA for short), support is based upon percentages of income.
The Method for Calculating the Basic Child Support Obligation
The basic calculation is simple. All the parental income is added together. Then a percentage, based upon the number of children is used. If the father earns $40,000 and the mother earns $30,000, the total income for child support is $70,000. For one child the percentage is 17. For two children it is 25. For three children it is 29. For four, well it’s cheaper to stay married.
$70,000 times 17 percent is $11,900. The basic total child support is $11,900. The father’s share of the support is based upon a ratio. (40,000 divided by 70,000=57 percent). The father’s child support obligation is $11,900 times 57 percent. The father must pay in support $6,783 per year.
If the custodial parent (in this case I’ve been using “mother”) has no income that then the father pays all the child support. For $40,000 a year that would be $6,800. Remember: income times percentage.
To calculate child support for more than one child, just up the percentages.
The Legal Standards For Calculating Income: All Income From Whatever Source
The courts use all income to calculate child support. All income means just that. Even disability and pension payments are considered income for child support. A housing allowance supplied by an employer is considered income. For the military members that means Basic Housing Allowance. Living rent free in your parent’s house is considered income for child support. Gifts are also considered income for child support.
Income for child support can be imputed. Owners of cash businesses are famous for under reporting income. Their income can be calculated for how much they spend. The courts will impute income to a person who reports $10,000 but spends $70,00. A person claiming to earn $10,000 shouldn’t be driving a Lexus or taking expensive holidays. The courts will calculate his true income and use that for child support. For example, I once showed that the father was spending $75,000 per year. He reported on $35,000. The court used the higher number to calculate child support.
Hiding income is not enough to escape child support payments.
The Income Deductions Available to Calculate Child Support Payments: Few and Far Between
Income deductions for child support are very few. The courts must give a deduction for social security and medicare. You can only deduct for support payments to another child if there is a child support order. Voluntary payments for another child will not reduce child support.
For example, assume the father has 3 children. One child by one mother (‘A’) and two by another (‘B’). Mother ‘B’ gets a child support order. Mother ‘A’ goes for a child support order. The father can claim the first order for the two child as a deduction. If he earns $40,000 after social security and medicare deductions, then he child support should be $6,800. ($40000 x .17) But, his is already paying $10,000. ($40000 * .25). For child support purposes his income is $30,000 not $40000 ($40,000 – $10,000). He pays $5,100 in child support.
Child Support Is assessed Against Only The first One hundred thirty six thousand Dollars ($141,000) Of Income or Is It?
The CSSA has an $141,000 cap on the income for child support (this number is adjusted periodically) . The child support percentages are to be applied up to $141,000 of the combined income of the parents. The statute does allow the court to apply the percentages to income about $141,000.
If the combined income of the parents is $200,000, then the court could find $34,000 in child support not $22,100. In order to go above $136,000, the court must make specific findings. The Child Support statutes lays out a list of factors. The bottom line is that the court will go above $141,000 if it is in the child’s best interest. At least that what the statute says. The Court of Appeals viewed the statute differently in a landmark decision, Casano v. Casano. In that decision the court found, in effect, that the $141,000 cap was discretionary. In other words, the court is not bound by the cap, and the custodial parent does not really bear the burden of proving need. In my experience, the non-custodial parent has the burden of proving that the cap should be used.
When Does A Loss of Income or Loss of Job Reduce Child Support Payments?
A loss of income or loss of job could reduce child support. But, only if the non-custodian parent can show that the loss was not his fault. If he lost his job, he must also show that he is looking for one.
Too many fathers have deliberately lost their jobs to avoid child support. This will not work. The courts are very suspicious of claims of lost jobs or decreases in income. If the court believes that loss was intentional, the child support will remain at the same rate. If the parent can’t pay, he can be sent to jail.
This is the basic outline of the New York Child Support Standards Act. Your individual case maybe this simple or more complicated. Please check the posts for more in depth discussions of various child support issues.