Generally speaking, the “non-custodial parent” is the one who would be responsible for paying child support. Indeed, there was a case a few years ago that clarified the existing laws, by making it clear that under no circumstances can the custodial parent be ordered to pay basic child support. In this case, the child lived with the father the majority of the time. Because the father was a multimillionaire, the trial court felt that it would be fair for the father to pay child support to the mother even though he was the custodial parent. That decision was reversed on appeal, and it was made crystal clear that under no circumstances can the custodial parent be ordered to pay child support. Of course, the custodial parent can still be directed to pay his or her share of the additional expenses such as unreimbursed medical, educational, and childcare costs. However, they cannot be ordered to pay basic support.
The only exception is if the parties have shared custody and if both parents have exactly equal time with the child or children. Under those circumstances case law has stated that the higher earning parent is deemed the non-custodial parent for child support purposes. Nevertheless, many child support orders would generally be for a much-reduced amount in this situation – owing to the fact that the parties are sharing custody 50/50. The courts generally recognize that the “non-custodial parent” in that scenario would have significant expenses when the children are living under their roof 50 percent of the time.
How Is The Amount Of Child Support Determined In A Divorce In New York?
The same law applies regardless of whether the case is being handled in divorce court or family court. In either situation the law will first determine the incomes of both parties and then apply the Child Support Standards Act. Under that act, the child support order is based on parental income at the rate of 17% for one child, 25% for two children, 29% for three children, 32% for four children, and 35% for five or more children. Once those percentages are applied to the incomes of both parties, the next step is to calculate the pro-rata share of each party’s income to the combined parental income before determining what the non-custodial parent’s overall child support obligation is.
The way the law is drawn up is a little confusing, because the calculations would work out the same way if you simply applied the percentages directly to the non-custodial parent’s income without even looking at the combined parental income. It’s written that way to make it easier to figure out the percentages that the parties would pay for additional expenses and also to take the combined income cap into account.
There is a cap below which the standard percentages would apply – 17% for one child, 25% for two children, and so on. The current cap is $148,000 as of November 2019, but the cap changes once every two years because it’s pegged to the consumer price index. It usually goes up by $3000-$5000 every two years.
What that means is that, as a general rule, the court does not have to apply those percentages to combined parental incomes above $148,000. In the Greater New York City area which would include Westchester, Long Island and all of New York City, there exists what attorneys generally term a “soft cap.” A soft cap means that the court often exceeds that $148,000 cap simply in recognition of the fact that cost of living is so much higher in the Greater New York City area than it is upstate. It costs more to raise a child down here as opposed to Essex County or Clinton County or some upstate county.
Generally speaking, although it definitely varies with the case, courts have gone up to caps of $300,000 to $400,000. I’ve seen reported cases as high as $800,000 or more and usually every year you’ll see another case that uses a higher cap simply because as each year passes, the cost of living goes up. And in super high-income cases, the Court also has discretion not to even set a cap, but simply figure out an appropriate amount.
Do Assets Affect The Amount Of Child Support To Be Paid Or Received?
As a general rule, assets do not affect child support calculations. Those percentages are meant to apply in the vast majority of cases.
There are certainly deviation factors that may lead the court to deviate up or down from the presumptive amounts. As of 2019, possible deviation factors include the financial resources of the parents and theoretically of the child, the physical and emotional health of the child and his or her special needs and aptitudes, the standard of living the child would have enjoyed had the marriage or household not been dissolved, any tax consequences to the parties, the non-monetary contributions that the parents will make toward the care and well-being of the child, the educational needs of either parent if one parent’s gross income is substantially less than the other parent’s, and the needs of children of the non-custodial parent.
As long as the child is not on public assistance the court can consider things like extraordinary visitation expenses. The court can also include any other factor it considers relevant. Nevertheless, there is no explicit statutory reference to assets or property owned. In a given case, the court might consider the fact that one parent has millions in assets despite having a relatively low income for tax purposes. The court can definitely factor that in when considering a deviation. To what degree it would end up impacting the amount is case specific. In order to determine a fair child support order in that situation, one would need to look at how the incomes are derived, what form and what amount the assets and property take, as well as a comparison between the two parties.
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