What is child support?
Child support is money one parent pays the other to help support a child. Child support includes expenses like the child’s health insurance and medical costs, educational expenses, and even child care while the custodial parent is at work or school. Usually, the parent who spends less time with the child makes payments to the other parent. The amount of child support is based on the income of both parents, however, any order for child support takes into account what each parent can provide.
How long will I have to pay child support?
In most circumstances, you must pay child support until your child reaches the age of 21. The age of majority is 18 for custody, visitation, and other purposes, but remains 21 for purposes of paying child support. Unless there’s some kind of agreement otherwise, parents have no duty to support an adult child.
Your duty of child support is not absolute, however. It may be suspended or terminated if a child older than 16 becomes emancipated by living apart from both parents without a need for foster care, by becoming financially self-supporting, or by marriage or entry into military service. Even in these circumstances, your duty to pay child support does not stop automatically. You will need to ask the same court that made your child support order to allow you to stop making payments because of your child’s emancipation.
How much will I have to pay?
Generally, the court determines the amount of child support based on both parents’ income per year and the number of children for whom the parents are responsible. If the parents’ combined income is $136,000 or less (as of January 1, 2012 – the amount changes every two years), the court follows a simple formula that is explained below. If the combined income is more than $136,000, the court could use the same formula for all income or just up to $136,000. There’s more about that below, too.
In applying the formula to come up with a basic child support obligation, the court adds the income of both parents and multiplies it by the appropriate child support percentage (based on the number of children). Your income for purposes of this calculation is your "gross income as was or should have been reported on the most recent federal income tax return." There are required deductions from gross income like alimony, public assistance, supplemental security, and New York City and Yonkers income taxes actually paid.
As an example, let’s say you have the majority of physical custody of your one child and you make $20,000, while the other parent makes $30,000. After adding your incomes ($50,000), the court multiples that total by a percentage per child, or “child support percentage.” These percentages 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, and
- no less than 35% of the combined parental income for five or more children.
In our example, the court would multiply $50,000 x .17 = $8,500. That product ($8,500) is the basic child support obligation. You would be responsible for 40% of that figure ($3,400) because your income ($20,000) makes up 40% of the combined parental income ($50,000). The other parent would be on the hook to pay 60% ($5,100). This means that the other parent would have to make payments to you over the course of the year that add up to $5,100. Because you have physical custody most of the time, the court will presume that you are spending your share directly on your child’s expenses.
In addition to the basic child support obligation, the court may tack on additional payments to cover child care costs if the custodial parent is working or going to school and for the child’s reasonable health care expenses. These payments are prorated at the same percentage as the support obligation (using our example, 40% and 60%). The court may also order payment for the child’s education.
If the combined parental income is more than $136,000 per year, the court has a choice. It could use the same formula as above for all of the combined income. Or, the court could use the formula for only the first $136,000 of combined income, and then decide how much (if any) of the remainder to award by considering these factors:
- the financial resources of the child and each parent
- the child’s physical and emotional health and any special needs and aptitudes
- the standard of living the child would have enjoyed if not for the divorce
- the tax consequences to each spouse
- the non-monetary contributions that the parents will make toward the care and well-being of the child
- the educational needs of either parent
- whether one parent’s gross income is substantially less than the other parent's gross income, and
- the needs of any other children of the non-custodial parent for whom that parent is providing support. (This factor may be considered only if the other children are not the subjects of the instant action and their support has not been deducted from the parent’s income.)
What if I don’t have any income?
Even if you aren’t working, you may still have income. The state of New York includes workers’ compensation awards, pensions, fellowships, stipends, and annuity payments as income for child support purposes. If you receive disability, unemployment, social security, veterans, or retirement benefits, then a court will use those benefit amounts to calculate your payments. Public assistance, on the other hand, is not income. Any amount of public assistance you receive from the state is deducted from the combined parental income.
What if the court’s calculations leave me with an amount that is still too hard for me to pay?
When the court calculates your basic child support obligation, it can also consider whether your share is unjust or inappropriate. You will need to explain why the amount is too much for you. Perhaps your income has significantly decreased from past years because of illness or market changes. It is possible, although not guaranteed, that the court will reduce your payments based on your particular hardship.
What if my finances change and I can’t make my payments?
You can ask the court to reduce your child support payments by filing a petition (application) for modification, but there must be a material change in your ability to pay (because you lost your job, for example). You must file your petition with the same court that ordered your payments in the first place. Only the court can change what you owe, even if you have been paying the other parent less or missed payments already, and even if the other parent agrees.
What if the other parent and I have already worked out a plan for child support in our separation agreement? Can we use that instead of the guidelines?
Yes. You both can waive the basic child support obligations as long as the waiver is in writing, states what the basic child support obligation would have been, and states the reasons why your agreement should be adopted instead. Your agreement must also recite that you have been advised of Domestic Relations Law § 240 (1-b) and Family Court Act § 413(1)(b) and that the basic child support obligation would presumptively result in the correct amount of child support to be awarded. The reason for this is to assure that the parties are aware of their rights and obligations under the law and knowingly waive such rights. This provision may not be waived by either party or counsel. In other words, both parents must agree to go around the child support guidelines. And even when there’s an agreement, it’s not valid until approved by the court.