In any divorce or legal separation case that involves a child under the age of 21, an important issue is how the child will be cared for financially. This is called child support. If the parents cannot reach an agreement on child support, the court will decide the level of child support using a mathematical formula that primarily considers the income of both parents. This is called the “basic child support obligation.” While the case is ongoing, the court can issue temporary child support orders that will be finalized when the case is finished.
Parents may decide on a different amount for the payment of child support in a written agreement signed by both parents acknowledging what they are doing, and that each has been advised of the amount of the basic child support using the court’s formula. The written agreement must also state the reasons for not paying the formulated amount. If the court finds that the needs of the child are not being met financially, then the needs of the child for support may override the written agreement of both parties. Most courts will require a minimum of $25.00 per month per child, even if a party gives up the right to receive child support.
Calculating Basic Child Support Obligation
In most situations, the court will order the non-custodial parent to pay the basic child support obligation to the custodial parent. The basic child support obligation is equal to the combined income of both parents (minus certain deductions) that is multiplied by a specific percentage that varies depending on the number of children to be supported. The total child support obligation is then divided between the parents in proportion to each of their incomes. The first calculation is on a combined income up to $148,000. On income in excess of $148,000, a separate calculation is made and the court must determine if it will apply the guideline percentages to the excess income or apply a different percentage and provide the reasons for its decision.
The percentages used to calculate the basic support obligation are:
- 17% of the combined parental income for one child
- 25% of the combined parental income for two children
- 29% of the combined parental income for three children
- 31% of the combined parental income for four children
- no less than 35% of the combined parental income for five or more children
“Income” includes more than just wages or salary from a job. Income can also include income from unemployment insurance benefits, workers’ compensation awards, disability benefits, social security benefits, veterans’ benefits, annuity payments, pension and retirement benefits, as well as stipends and fellowship awards. The court can also consider a parent’s income potential or other income not reported on tax returns.
After the gross income is identified (up to a certain cap, currently $148,000 in combined parental income, although based on certain factors the cap might exceed this level), certain deductions can be subtracted, including: Social Security and Medicare (FICA) contributions; New York City or Yonkers income tax; child support or maintenance actually paid to a non-party pursuant to a court order or a written agreement; or public assistance benefits. After the deductions are made, the two adjusted incomes are added together. This figure is called the “combined parental income” and it is then multiplied by one of the percentages identified above. Each parent’s income is then divided into the combined parental income to determine each parent’s proportional share of the combined parental income.
The basic child support obligation is intended to cover food, clothing, shelter and other basic expenses, but does not include medical expenses that aren’t covered by insurance or child care expenses while the custodial parent goes to school or work. These amounts are added on to the basic child support obligation, and each parent is responsible for the parent’s proportional share of the add-on expenses. Mandatory add-on expenses include: the cost of health insurance for the child, unreimbursed health care expenses (such as co-payments), and a share of any necessary child care expenses for a party who is working. The court may also add-on other items like educational expenses, religious education, and costs for extracurricular/summer activities, although these are not mandatory add-ons.
After completing these calculations, the court may find that paying the basic child support obligation is not fair to the non-custodial parent if it would leave the non-custodial parent living below the legal poverty level or if other circumstances affect the non-custodial parent’s ability to pay. In that case, the court may allow payment of a lesser amount.
Legal Editors: Jody Gerber and Robert H. Moses, September 2015 (updated January 2019)
Changes may occur in this area of law. The information provided is brought to you as a public service with the help and assistance of volunteer legal editors, and is intended to help you better understand the law in general. It is not intended to be legal advice regarding your particular problem or to substitute for the advice of a lawyer.