How Does Equal Parenting Time Affect Child Support?
In New York, if the parties share equal parenting time, then the parent with the higher income pays the child support to the parent with the lower income. However, the courts retain the discretion to deviate from the formula (based on the 10 aforementioned factors) in cases involving equal parenting time. As a practical matter, when one has the child 50% of the time, one has all of the expenses of raising the child. So that factor does come into play. Sometimes the courts believe that it is unjust and inappropriate for the parent who is making the greater income to pay the full amount of the child support. Sometimes they are less moved.
If one parent is making $55,000 a year, the other parent is making $50,000 a year, and they’re splitting the children 50% of the time in each household, then to require the party making $55,000 to pay 25% of his or her income to the other party would be to reduce substantially the income of the $55,000 earner. It would also make the parent who has the lower income much more affluent.
But if you have a situation in which one parent makes a million dollars a year and the other parent makes $25,000 a year, then the idea that there shouldn’t be any child support simply because the more affluent spouse has the child half of the time seems to be a little odd. The child would be staying in a very, very affluent household during one half of the week, and staying in a household that’s barely making enough money to meet necessary expenses during the other half of the week. In most cases, it doesn’t seem like that would be in the child’s best interest.
Which Party Generally Has To Pay Alimony Or Spousal Support In a Divorce Case?
In New York alimony is referred to as “maintenance.” The determination of maintenance is essentially formula-driven, much like the statute on child support (although the mathematics is a little bit more complex). The party who has the greater income is the one who is going to pay maintenance. The differential between the parties’ incomes will be used to determine whether or not maintenance will be paid.
How Is The Amount Of Maintenance Or Spousal Support Determined In New York?
There are two formulas contained within the statute, and they differ slightly depending on whether or not children are involved. They also depend on whether or not the payor is the custodial parent when the non-custodial parent is paying the child support. The maintenance is dependent upon the incomes of the parties, which is based on their last tax return filed. Now, the easy way to calculate maintenance is to visit the office of court administration website and plug the numbers into the maintenance calculator. The calculator does all of the math and provides the maintenance amounts.
Maintenance is calculated before child support. This is because the maintenance is added to the income of the party who receives it for the purpose of calculating the child support, and it is subtracted from the party who is paying it for the purposes of child support.
Let’s consider an example. Assume dad makes $80,000 a year and the mom makes $20,000 a year. Let’s assume that the dad is ordered to pay $10,000 a year in maintenance. Well, when we get to the pro ratas of healthcare or childcare without the maintenance, dad would pay 80% and mom would pay 20%. But with maintenance, dad would pay 70% and mom would pay 30%. So, there is a real consequence of calculating the maintenance before the child support.
If the child support is not paid for the children in the marriage, or if the child support will be paid for children of the marriage but the payor of the maintenance is the custodial parent under the child support standards act, then there are two formulas that we use. One mathematical formula for calculating maintenance involves subtracting 20% of the payee’s income (the person who is receiving the money) from 30% of the payor’s income. The sum will be the annual maintenance under the formula. So, that is one way to do it.
The second way is a little more complicated and involves multiplying the sum of the payor’s income and the payee’s income by 40%. So, we’ll add the payer’s income to the payee’s income and then multiply it by 0.4. The court will then subtract the payee’s full income from the amount above, and that will be the amount of the maintenance that should be paid.
The court will calculate the maintenance in these two different ways, and the lower of the two amounts is what we call the presumptively correct amount of maintenance. The court is not required to impose that amount of maintenance. The court has 14 reasons that it can deviate from that sum. The court can look at the 14 factors and say, “Based upon these 14 factors, we are going to use the number that comes out of the formula,” or “Based upon the 14 factors, we are going to change the number that comes out of the formula and impose a different number.”
The 14 factors are as follows: the age and health of the parties, the present or future earning capacity of the parties (including a history of limited participation in the workforce), the need of one party to incur educational training expenses, the determination of child support awarded during the pendency of the spousal support award when the calculation of spousal support was based upon child support being awarded (which resulted in a spousal support award lower than it would have been had child support not been awarded), the wasteful dissipation of marital property, including transfers and encumbrances made in contemplation of the support proceeding without the fair consideration, the existence and duration of pre-marital joint household or pre-support proceeding separate household, the acts by one party against another that have an inhibited or continue to inhibit a party’s earning capacity or ability to obtain meaningful employment (including but not limited to acts of domestic violence), the availability and cost of medical insurance for the parties, the care of children or stepchildren, disabled adult children or stepchildren, elderly parents or in-laws provided during the marriage that inhibits a party’s earning capacity, the tax consequences of each party, the standard of living of the parties established during the marriage, the reduced or lost earning capacity of the payee as a result of having forgone or delayed education training/employment/career opportunities during the marriage, the contributions and services of the payee as a spouse, parent, wage-earner and homemaker to the career or potential career of the other party, and lastly, any other fact that the court finds to be just and proper.
If the court finds the amount out of the formula to be unjust or inappropriate, then it would turn to those factors to justify a deviation. If it does not, then the amount out of the formula is the amount of the maintenance that the court would impose.
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