Who Pays Child Support In a Divorce Situation?
The party who has the child less than half of the time will be the one who pays child support in New York State. The courts are very clear that the party who has the child more than half of the time cannot be ordered to pay the child support to the other party. Yes, there are situations in which one party has the child 60% of the time, but they also have a substantially larger income than the other parent. Despite the much greater income, the party who has the child more than half the time does not pay the support. For example, if dad has the child 60% of the time and he makes one million dollars a year while mom works as a secretary and has the child 40% of the time, dad does not pay child support to mom. The courts look to the amount of time that the child is with each parent; the parent who has the child more than half of the time will not pay the support. The parent who has the child less than half of the time will pay the child support.
How Is The Exact Amount Of Support Calculated Or Determined?
It’s determined based upon the incomes of the parties as reported on the last tax return filed, or as should have been reported by the parties on the last tax return filed. This comes up frequently when somebody is not reporting their full income because they get paid in cash and they just don’t put it on the tax return. Assuming one can prove the unreported income, the court will add the unreported income to the reported income to calculate support. The party who pays will pay a different percentage of his or her annual income for basic child support, which is 17% for one child, 25% for two, 29% for three, 31% for four, and not less than 35% for five or more children. There are some things that get taken off the total income, like social security, Medicare, taxes, and business expenses. Then we apply that percentage, look at it annually and usually divide by 26 if one is paid every other week. We will divide by 52 if one is paid every week.
The court is not required to order that the amount set by the formula be the amount of the child support. The court can deviate from forming it for any of 10 reasons. One of those reasons is the financial resources of the custodial and non-custodial parent and the financial resources of the child. Sometimes you do have a child who has substantial money.
A second reason a court may deviate from the support figure yield by calculation is the physical and emotional health of the child and his or her special needs or aptitudes.
The third reason is the standard of living the child would have enjoyed had the marriage or household not been dissolved.
The fourth reason is based on the tax consequences to the party.
The fifth reason is the non-monetary contributions the parents will make toward the care and well-being of the child. Sometimes when we have cases where the child is spending almost as much time in a non-custodial parent’s house as in the custodial parent’s house, that factor becomes important.
The sixth reasons would be the educational needs of each party.
The seventh reason is the court determines the gross income of one parent is substantially less than the other parent’s gross income.
The eighth reason pertains to the needs of the child or 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 under other sections of the statute. That’s the main thing. If dad has one child who he is paying child support for under this formula, and he has two other children in his new life and they are living together, those two other children must eat. So that factor sometimes comes into play.
Provided that the child is not on public assistance, the ninth reason would be if extraordinary expenses incurred by the non-custodial parent in exercising visitation, or expenses incurred by the non-custodial parent in extended visitation resulted in the custodial parent’s expenses being substantially reduced. That factor comes up when you have parents who are living far away from each other and the non-custodial parent’s time is the whole summer. That factor may come into play because there was the airline fare or other associated expenses. The custodial parent’s expenses might be reduced as well, but if you can show those things, then that comes into play.
The tenth factor is anything that the court determines is relevant in each case, which of course really opens it up to many other things that the legislature did not contemplate.
In addition to the child support amount that’s based on the formula, the court is required to tell us what that formula yields and whether it will deviate for one or more of the 10 reasons just enumerated.
In addition to that, the court will require each parent to pay what’s called their pro rata share of the income for childcare and whatever is necessary for the custodial parent to work or attend an education program and cover healthcare expenses, including insurance. To determine pro rata share, we take the incomes of both parties, add them together and ask, “What percentage of that income is from mom, and what percentage of that income is from dad?” Then, they each pay a percentage of these additional expenses depending upon their share of the combined parental income.
For example, if the dad makes $60,000 a year and the mom makes $40,000 a year, then the dad will pay 60% of the childcare and 60% of the healthcare expenses. The mom would pay 40% of the childcare and healthcare expenses. The court can impose an obligation to pay education expenses, such as private school, tuition or college related expenses. The court can also impose an obligation to get life insurance and other things of that nature. However, those things are not mandatory and the court will have to make decisions on a case-by-case basis.
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