Calculating Basic Child Support

By Staff Writer

In all States, child support is calculated pursuant to a specific law that contains a formula.  In New York that law is known as the Child Support Standards Act (the “CSSA”). The CSSA contains a detailed formula and guideline for calculating the appropriate amount of child support.

Basic support is the amount of support that will be paid on a regular basis, usually every weekly or bi-weekly. To determine basic support, the Court must know the income of both parents. Income under the CSSA includes any income that was or should have been reported on the parent’s most recent federal income tax return. Income is not limited to income received from an employer or business. It also includes any benefits received, such as workers compensation, disability, unemployment, social security, veterans, pension and retirement, fellowships and stipends and annuity payments. Public assistance is one benefit that is not added into a party’s gross income. If one or both of the parents is receiving public assistance, the amount received should not be included in that parent’s gross income.

When determining what a parent’s income is, the income actually reported, or being received by a parent does not bind a Court. A Court can decide that a parent is capable of earning more money. When that happens the Court may impute income to that parent. To impute income to a parent, a Court determines that person’s income level by adding other monies to actual income. For example, if a parent has consistently earned income of $50,000, but at the time of the Court’s determination is unemployed or earning $20,000, the Court may calculate support on income level of $50,000 as a result of that parent’s income earning ability or income earning history. In doing that, the Court will look at that parent’s education and work experience, will determine what that parent is capable of earning, and will assess whether there is a good reason for the reduction in that parent’s income. This prevents a parent from quitting his or her job, or taking a job paying substantially less, in Order to avoid paying Child Support.

Courts consider other issues when determining a parent’s income. For example, if a parent has received fringe benefits or regular gifts, the Court may impute additional income to the parent based upon those payments. Other monies received can also be considered, even if the Court does not technically determine that those payments will be considered income. Those other payments can include other gifts, inheritances, lottery winnings and life insurance benefits.

After the Court determines both of the parents’ incomes, including any imputed income, the Court deducts certain items. Those items are Social Security and Medicare taxes and New York City or Yonkers City taxes. If a parent is already paying Court Ordered child or spousal support for a former spouse or children from a former relationship, or if the parent is paying spousal support or maintenance to the other parent, those payments are also deducted from income.

After deducting the above items from each parent’s income, the Court calculates basic support on the combined parental income. For example, if after adding together all income and subtracting all of the deductions one parent’s income is $40,000 and the other parent’s income is $20,000, then the combined parental income is $60,000.

To arrive at the Basic Child Support amount, the combined parental income is multiplied by a percentage. The percentage that is used is dependent upon the number of children that the parties have. For one child, the percentage is 17%. For two children, the percentage is 25%. For three children the percentage is 29%. For four children the percentage is 31 % and for five or more children the percentage is no less than 35%.

The Basic Child Support amount that is arrived at after doing the above calculation is the total support due from both parents. That support must then be apportioned between the parents based upon their incomes. Using the above example, since one parent earns $40,000 to the other parent’s income of $20,000, the parent earning the larger amount actually earns two thirds of the income. That parent would be responsible for two thirds of the Basic Child Support amount due on the combined parental income. If the parent earning $40,000 is the non-custodial parent, that parent will pay two thirds of the Basic Child Support amount on the combined parental income to the other parent. If the parent earning $20,000 is the non-custodial parent, that parent would pay one third of the Basic Child Support amount on the combined parental income to the other parent.

The CSSA requires that the Basic Child Support be calculated as set forth above. In most Separation Agreements and in Court Orders, the calculation is written out in that manner. To arrive at a quick calculation of Basic Child Support without going through the mechanics of determining combined parental income and then apportioning the Basic Child Support, simply multiply the appropriate percentage by the income of the non-custodial parent. That calculation will give you the same figure for the payment of Basic Child Support by that parent to the other parent.

The CSSA requires that Basic Child Support first be calculated on the first $80,000 in combined parental income. If the combined parental income exceeds $80,000, the Court can apply the percentages above to all of that income, or devise a different method for assessing Basic Child Support to the amount over $80,000. In many cases where the combined parental income does not exceed $150,000, Courts generally apply the formula to the entire income amount. In cases where the combined parental income exceeds $250,000 there is often a reduction in either the support percentage or a cap on the income subject to that percentage. Each case is unique and the facts particular to each family will govern a Court’s decision making. There are ten factors listed in the CSSA that the Court can consider in determining whether to apply the above percentages to all of the parents’ combined income. Those factors are:

1. the financial resources of the parents and the child;
2. the physical and emotional health of the child and the child’s special needs and aptitudes;
3. the standard of living the child would have enjoyed had the marriage or household not been dissolved;
4. the tax consequences to the parties;
5. the non-monetary contributions that the parents will make toward the care and well-being of the child;
6. the educational needs of either parent;
7. a determination that the gross income of one parent is substantially less than the other parent’s gross income;
8. the needs of the children of the non-custodial parent (children not involved in the instant proceeding) for whom support has not been deducted from income, and the financial resources of the person obligated to support such children;
9. if the child is not on public assistance, (i) extraordinary visitation expenses of the non-custodial parent, or (ii) expenses incurred by the non-custodial parent in extended visitation provided that the custodial parent’s expenses are substantially reduced as a result thereof;
10. any other factor or factors that the Court determines is relevant in each case.

In New York, every parent has an obligation to support his or her children. If a non-custodial parent is surviving at or barely above the poverty level, or if they are unemployed, they will pay a minimum Child Support payment of $25 or $50 per month, depending upon the actual circumstances of the case.

Parents are not obligated to apply the CSSA in New York. They can calculate support in any manner that they choose. However, parents can only do so if they are entering into a voluntary agreement. A Court cannot determine Child Support on any methodology other than the CSSA.

If the parties agree to an amount of support that they arrived at by a method other than the CSSA, it is important that they state why they are deviating from the CSSA. That statement must be in a written agreement or an oral stipulation entered into in open Court and recorded by a Court Reporter. The agreement must state that the parties have been advised of the terms of the CSSA and that application of the CSSA would “presumptively result in the correct amount of Child Support”.

Any agreement that deviates from the CSSA must contain two other very important provisions. The agreement must state what amount of support would have been paid pursuant to the CSSA if the parties followed the CSSA. It must also state in detail the factual reasons for the parents’ deviation from the CSSA.

A parent’s support obligation is not limited to only “basic” child support. Additional amounts of support that must be paid on top of basic support will be detailed in a future newsletter.