A few months ago, I wrote a few notes about spousal maintenance. Today, I’d like to write a few notes about child support that I think are important to keep in mind. I gave a basic overview of child support last year, but I thought I would take the time to write about it again, since this is such an important part of any separation agreement. (You’re learning along with my students!)
The Child Support Formula
In an effort to make decisions fair and uniform, New York instituted a child support formula many years ago. That formula is the presumptively correct amount of support to be paid, so it is important for everyone with children who is divorcing or separating to know what the formula results would be. However, even though numbers can seem so simple, there are always assumptions going into them — so let’s deconstruct the formula a little bit:
- Both parents are responsible for supporting their children, and this is expressed in the formula. So even though only one person is actually paying the other, it is assumed that the “custodial” parent is also adding in his/her funds to purchase things for the children’s needs. In other words, it is assumed that the amount paid in child support is not the total of what they will need.
- One parent is considered the “custodial parent” and one is the “non-custodial parent” for child support purposes, even if the kids are with parents an equal amount of time. When the parents have exactly 50/50 residential custody, the parent with the higher income pays the parent with the lower income.
- The formula only addresses the amount payable for basic child support. In addition, it shows the pro rata (or proportional) amount each parent is expected to pay for “add-on” expenses. These include the costs of unreimbursed healthcare expenses and health insurance premiums, childcare to enable both parents to work (including after school or camp programs), and the costs of educational programs for the children. In mediation, we often make a specific list, talk about the costs of college, private school, after school activities, etc.
- The formula assumes a combined parental income up to a “cap,” which is adjusted every other year. The income cap is currently $148,000 (until March 2020). What happens when the combined parental income is higher than the cap? If the case is in court, the magistrate will either apply the same formula using a higher cap (or none at all), or will simply make a determination based upon the children’s actual expenses, and some other articulated factors. One important factor might be how much time the children spend with the parent who is paying! I usually assume that, in New York City, the formula would be used for about the first $350,000 of combined parental income, although the case law is inconsistent on this.
- When people are mediating, we look at the cap, but we also look at the parents’ budgets and what they can actually afford — particularly when there are extraordinary expenses in relation to their income, such as housing. This is another area that is ripe for mediation.
- If one parent was a high earner and then quits working, a court may impute income to that parent. In other words, they may require that parent to pay support based upon what they think the parent could earn, rather than what that parent actually does earn!
- Parents may not waive child support entirely. The thinking here is that it belongs to the children, not to the parents! The minimum a parent can pay is $25/month.
- In New York, child support must be paid until the child turns 21 — or possibly even a little later, if the child is in school full time.
What happens if I can’t pay?
- Do NOT let arrears build up! There is a federal law (called the Bradley Amendment) that makes it impossible for judges to forgive child support arrears, even if the payor had a good reason for not paying. This is true even if the custodial parent agrees!!
- Child support arrears are not even dischargeable in bankruptcy.
- The only way to have a child support order changed is to go back into court and file for an upward or downward modification of child support. Any change that a magistrate makes can only be retroactive to the date the petition was filed.
- It is important for mediation clients to understand that this applies to them, even if they both agree to the changes. The safest bet, particularly if there is a downward change, would be to go to court to obtain a new child support order.
- Child support orders can be changed in Family Court as well as Supreme Court.
This is such an important and sensitive area — it is vital to review it carefully with an experienced family law attorney when you are working out the terms of your Settlement Agreement!
Joy S. Rosenthal, Esq.
Rosenthal Law & Mediation
225 Broadway, Suite 2605
New York, New York 10007