Author: S. Thomas Lee, Esq.   Last Updated: 11/28/2018

If children are involved in a divorce, how much child support should the non-custodial parent pay?

In New York State, child support law is found in Domestic Relations Law § 240. The law provides for what is known as “Basic Child Support Obligation” (BCSO). Unless there are special circumstances involved, the BCSO is a set percentage of the “child support income” of the non-custodial parent.

What is Child Support Income?

Since BCSO is a percentage of the parents’ income, the law must specify what count as income for the purposes of child support. Under New York law, income is broadly defined.

Mandatory income items

The following items are required to be included as income:

(1) Gross (total) income as should have been or should be reported in most recent federal income tax return.

(2) Investment income reduced by amount expended in connection with the investments.

(3) Income from these sources:
      (a) deferred compensation
      (b) worker’s compensation
      (c) disability benefits
      (d) unemployment insurance benefits
      (e) social security benefits
      (f) veterans benefits
      (g) pensions and retirement benefits
      (h) fellowships and stipends
      (i) annuity payments

(4) the amount of income or compensation voluntarily deferred.

(5) Alimony received or to be received pursuant to court order or a validly executed written agreement.

Discretionary income items

At the discretion of the court, the court may attribute or impute income from these (and not only these) resources:

(1) non-income producing assets,

(2) meals, lodging, memberships, automobiles or other perquisites that are provided as part of compensation for employment to the extent that such perquisites constitute expenditures for personal use, or which expenditures directly or indirectly confer personal economic benefits,

(3) fringe benefits provided as part of compensation for employment, and

(4) money, goods, or services provided by relatives and friends;

(5) an amount imputed as income based upon the parent's former resources or income, if the court determines that a parent has reduced resources or income in order to reduce or avoid the parent's obligation for child support;

(6) following self-employment deductions attributable to self-employment carried on by the taxpayer:

      (a) any depreciation deduction greater than depreciation calculated on a straight-line basis for the purpose of determining business income or investment credits, and

      (b) entertainment and travel allowances deducted from business income to the extent said allowances reduce personal expenditures;

Deductions

The parties are allow certain deductions from their income. These deductions include:

(1) Unreimbursed employee business expenses (except to the extent expenses reduce personal expenditures).

(2) Alimony or maintenance actually paid to non-party spouse pursuant to court order or agreement.

(3) Child support actually paid pursuant to court order or agreement for non-party child.

(4) Public assistance.

(5) Supplemental social security Income.

(6) NYC or Yonkers taxes.

(7) Federal Insurance Contributions Act (FICA) Social Security taxes.

(8) Federal Insurance Contributions Act (FICA) Medicare taxes.

New York Child Support Percentage

The child support percentages are based on how many children there are. The percentages are as follows: 17% for 1 child. 25% for 2 children. 29% for 3 children. 31% for 4 children. 35%(minimum) for 5 or more children. Please note that this is only the general rule. If the NCP’s income is less than the self-support reserved ($16,389), a different rule applies. Furthermore, If the combined parental income of the parties is more than $148,000, additional considerations will be required.

Additional Child Support

In addition to the percentage based amount mentioned above, the NCP is also required to contribute to 3 other areas of expenses related to raising a child. These areas of expenses are:

(1) child care,

(2) health insurance and

(3) health care expenses not covered by insurance.

Furthermore, if there are education and extraordinary expenses involved in raising the children, the NCP may be required to pay for part of those expenses as well.

For these additional items, both parents are responsible to pay a percentage of the expense in accordance with their pro-rata share of the combined parental income.

Child Support Adjustment Factors

The court has the discretion to deviate from the percentage-based amount under these factors:

(1) The financial resources of the custodial and non-custodial parent, and those of the child;

(2) The physical and emotional health of the child and his/her 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 for whom the non-custodial parent is providing support who are not subject to the instant action and whose support has not been deducted from income, and the financial resources of any person obligated to support such children, provided, however, that this factor may apply only if the resources available to support such children are less than the resources available to support the children who are subject to the instant action;

(9) Provided that the child is not on public assistance (i) extraordinary expenses incurred by the non-custodial parent in exercising visitation, 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; and

(10) Any other factors the court determines are relevant in each case, the court shall order the non-custodial parent to pay his or her pro rata share of the basic child support obligation, and may order the non-custodial parent to pay an amount pursuant to paragraph (e) of Domestic Relations Law Section 240(B-1).

Disclaimer: this article should not be construed as legal advice. Each legal case should be analyzed based on its own facts and circumstances.

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