Deviating From Child Support Guidelines

Under the Child Support Standards Act, when determining child support the Court will combine the parental income and multiply that sum, up to $136,000.00, by the appropriate percentage based on the amount of children there are in the marriage. The percentages are: (1) 17% for one child; (2) 25% for two children; (3) 29% for three children; (4) 31% for four children; and (5) 35% for five or more children.

If the Court decides that the amount of the child support dictated by the Child Support Standards Act is unjust or inappropriate, the Court may, in its discretion, deviate from the guidelines. The Court may increase or decrease the amount of support ordered. However, before the Court can take such action, it must first determine what the guidelines call for and then specifically explain in its order the reason for the deviation. In deciding to deviate from the guidelines, the Court must consider the following nine factors: (1) the financial resources of the parents; (2) the physical and emotional health of the child and his or her special needs and aptitudes; (3) the standard of living the child would have enjoyed but for the dissolution of the household; (4) the tax consequences; (5) the non-monetary contributions that the parents will make toward the child; (6) the educational needs of the 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 other children that the non-custodial parent is supporting, if not already taken into account, and the financial resources of the person also obligated to support such other children, provided that the resources available to support such other children are less than those available to the children for whom support is now being considered; and (9) provided that the child is not on public assistance, extraordinary visitation expenses of the non-custodial parent or expense incurred by the non-custodial parent during extended visitation that reduce the expenses of the custodial parent. Finally, in addition to these nine factors, the Court may consider any other factor it deems relevant.

What if the combined income is greater than $136,000.00? The guidelines are mandatory up to $136,000.00. For income above the $136,000.00 guideline, the Court may apply the guidelines or it may apply discretionary factors provided for use in determine whether application of the guidelines is unjust or inappropriate. So the bottom line is that if parental income exceeds $136,000.00, the Court may either apply the guidelines or may base its determination on previously mentioned nine factors or a hybrid of the two.

LEARNING POINT: Child support is a complicated. There are tax consequences to be considered and once income exceeds $136,000.00, being able to articulate to the Court how you would like the Court to determine the amount of child support is of paramount importance. Call us today for a free consultation to discuss your options and begin preparing your case.

When Do I Have to Start Paying Child Support?

Paying Child Support on Long Island

child support long islandYou have made the decision to get divorced.  You’ve hired an attorney, filled out net worth statements and sat through countless meetings.  The Judge hears your case grants you a divorce. You immediately find out you’re 12 months behind in child support payments and you’ve only been divorced for ten minutes….what happened!?!

Domestic Relations Law (“DRL”) §236B7 happened.  It states that “…such order shall be effective as of the date of the application therfor, and any retroactive amount of child support due shall be paid in one sum or periodic sums, as the court shall direct, taking into account any amount of temporary child support which had been paid.”  Or in other words, you are liable for child support as of the day the application was served.  So, your spouse filed for divorce and you were served with papers on February 1, 2011.  Your divorce was finalized February 1, 2012.  As of February 1, 2012, you are in arrears for 12 months of child support.

long island child support

Make sure to keep records of everything during your divorce.

In calculating any back child support that is due, the court will take into account any temporary support payments that you made pending the divorce.  Thus, if you are in arrears $10,000.00 and you are able to show that you have been paying child support every month for a total of $8,000.00, you are in arrears $2,000.00.  What if you over pay?  Your children will be appreciative however, you will not get a credit.  In other words, child support for the year is $10,000.00 and you can show you paid $12,000.00, your spouse is not liable to refund you the difference.

Your back child support must be brought up to date.  However, in the court’s discretion, you may be allowed to break up your payment into monthly installments in addition to the court ordered support.  So, back to our example, if you are ordered to pay $1,000.00 a month in child support and owe $12,000.00 in back child support ($1,000.00 x 12 months) the court, in its discretion can break up your back pay over a year.  Thus, you will still pay $1,000.00 court ordered support, plus another $1,000.00 a month in backed child support for the first year, or in other words, that first year you will be paying $2,000.00 a month in child support.

Learning point: keep detail records of all support going to your spouse during the divorce process.  If you can, create a paper trail.  Pay your spouse with a check.  Understand that if you are not the custodial spouse, i.e. you do not have the kids, may be liable for child support. Speak to your Long Island divorce attorney about potential child support liabilities and plan accordingly.

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