Child Support will be paid to the parent who has physical custody of the Child. The parent who does not have physical custody of the child will pay Child Support. In situations where custody is in dispute, the Court will nonetheless look to see which of the two parents has been the primary caregiver of the child prior to the dispute reaching the Court, and will issue an award of temporary child support to the primary caregiver.
It is often the case, early in court proceedings, that a primary caregiver will file a petition for child support, and then a substantial period of time will pass before the two parents actually appear before a judge to be heard. The eventual award of child support will be retroactive to the date that the primary caregiver filed his or her petition.
It is also the case that a temporary order of child support will be issued by the Court based on incomplete information. If the temporary order of child support calls for a child support amount that is ultimately determined to be too low, the correct amount will eventually be applied retroactively.
This all means that it is very easy for the non-primary caregiver to accrue child support arrears (ie: child support debt) that will have to be paid on top of the basic monthly child support amount.
Child Support Arrears cannot be waived or forgiven. For this reason, if you know that you are not the primary caregiver of your child, particularly if you are not living in the same home as your child, and you have reason to know that an application for child support has been or is likely to be filed, it is in your financial interest to make voluntary payments of child support, and keep careful records of any child support payments you make, so that you will get credit for those payments when you find yourself in court.
There are two aspects to child support: Basic Child Support, and Add-on Child Support.
Basic Child Support is a regular payment that is based upon a percentage of the non-custodial parent’s income. The percentage used is based upon the number of children to be supported: 17% for one child, 25% for two children, 29% for three children, 31% for four children, and not less than 35% for five or more children.
The appropriate percentage is applied to the combined income of both parents up to a statutory cap that changes every year (for the year 2020 it was $154,000). If the combined income of both parents is more than the statutory cap, the court has the discretion to apply the percentage to the amount of income above the cap, or utilize other factors to determine how much basic child support should be assessed on the amount of income above the cap.
To determine the parents’ income for child support purposes, the Court will look at the gross income that each parent reported on their most recent tax return, and for wage earners, will also look at recent paystubs. There are deductions that will be made to the gross income of both parents prior to the application of the percentages, but the deductions do not include state or federal income tax.
Once the parents’ combined net income for child support purposes has been determined, the Court will next determine what percentage of the combined net income is attributable to each parent. So, to illustrate, let’s suppose the combined parental income is $100,000, of which the father contributes $75,000, and the mother contributes $25,000. The father’s contribution to the combined parental income is 75%. Thus, using the same numbers, if the combined child support obligation for both parents is $25,000 ($100,000 x 25%), and the father is the non-custodial parent, the father will pay $18,750 ($25,000 x 75%) per year in child support to the mother, in a monthly amount of $1,562.50 ($18,750 ÷ 12).
Note: if you simply multiply the father’s income ($75,000) by the applicable percentage (25% for two children), you get the same result: $18,750 per year. So why the tortured calculation? Well, part of the answer is simply because the NYS legislature, in its wisdom, has made it a requirement that must be reflected in the Court’s order. However, there is a practical reason as well, which brings us to the topic of Add-on’s.
In addition to the “Basic Child Support” obligation, which is ascertained by applying the correct percentage to the combined parental income, and then assessing the non-custodial parent’s proportion of the result, there are also “Add-on Expenses” that he or she must contribute to. Add-on expenses break down into three (3) categories: Child Care Expense, Health Care Expense, and Educational Expenses.
Child Care Expenses will be treated as an Add-on expense when the custodial parent must utilize child care services in order to pursue employment, or to obtain education or training that will likely lead to employment. The Child Care Add-on Expense is divided between the parents in the same proportion as each parent’s income is to the combined parental income. Thus, using the example above, the father would pay 75% of the cost of child care to enable the mother to work and earn her income.
Health Care Expense includes both the cost of providing basic health insurance, and the division between the parents of the cost of unreimbursed health care expenses. So, using the example above, suppose the father has an employer provided health insurance plan that covers the children, and suppose it requires him to contribute $100 per month to the cost of the plan. The mother’s contribution to that plan would be $25 per month, which would be deducted from the basic child support payment that the father must pay to her each month. Suppose pursuant to the same plan, each time the children go to see their doctor there is a $100 copay. The father would be responsible for $75 of that copay, and the mother would be responsible for $25.
Educational Expenses are more complicated than child care and health care. First, unless the parents agree, the Court must be satisfied that the educational expense is necessary and appropriate. Assuming the Court is satisfied as to the appropriateness of the expense, it then has a lot more discretion in allocating responsibility for that expense, it need not be allocated in the same way as child care and health care.
In New York State, Child Support is generally paid until the child reaches the age of 21 years, although there are circumstances under which the child can become emancipated at an earlier age.
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