New York Child Support Standards Act
How to Calculate Basic Child Support and add-ons under the CSSA guidelines
DRL 240, FCA 413
By J. Douglas Barics
Child Support in New York is governed the Child Support Standards Act, known as the CSSA or simply "the guidelines" and is found in two mirror statutes, Domestic Relations Law 240 Section 1-b and Family Court Act 413. The DRL is used for actions in Supreme Court, while the FCA applies proceedings in Family Court.
New York child support consists of two elements; "basic" child support and the "add-ons." Basic child support is calculated in a two step process; (a) the support based on the first $130,000 of combined parental income (known as the $130,000 cap), and (b) support based on the combined parental income over $130,000. In addition to the basic child support, DRL 240 requires that certain mandatory add-ons be included in all child support orders, such as unreimbursed medical expenses and day care.
The following are the steps to calculate child support under both Domestic Relations Law 240 (1-b) and Family Court Act 413.
1. DETERMINE INCOME FOR BOTH PARENTS
Both parent's income must be calculated.
(a) Mandatory Income
DRL 240 1-b(b)(5) requires that the following be included as mandatory income:
- Gross (total) income as should have been or should be reported in the most recent federal income tax return. DRL 240 1-b(b)(5)(i)
- Investment income reduced by sums expended in connection with such investment. DRL 240 1-b(b)(5)(ii)
- To the extent not provided by DRL 240 1-b(b)(5)(i) or (ii), additional income from the following: workers' compensation, disability benefits, unemployment insurance benefits, social security benefits, veterans benefits, pensions and retirement benefits, fellowships and stipends, annuity payments. DRL 240 1-b(b)(5)(iii).
(b) Additional Income
Under DRL 240 1-b(b)(5)(iv), the court has the discretion to add the following as additional income:
- Non-income producing assets
- Meals, lodging, memberships, automobiles or other perquisites that are provided as part of compensation for employment to the extent that such perquisites constitute expenditures for personal use, or which expenditures directly or indirectly confer personal economic benefits
- Fringe benefits provided as part of compensation for employment, and
- Money, goods, or services provided by relatives and friends.
Under DRL 240 1-b(b)(5)(vi) if not already included in gross income, the court can also add the following:
- Any depreciation deduction greater than depreciation calculated on a straight-line basis for the purpose of determining business income or investment credits, and
- Entertainment and travel allowances deducted from business income to the extent said allowances reduce personal expenditures.
(c) Imputed Income
If the court determines that a parent has reduced income in order to avoid their child support obligation, the court may impute additional income to the parent based on their former resources or income. See DRL 240 1-b(b)(5)(v).
2. DEDUCTIONS FROM INCOME
From the total income, DRL 240 1-b(b)(5)(vii) provides that the following deductions are to be made.
- Certain unreimbursed employee business expenses
- Maintenance paid to a spouse not a party to the current action for child support, but only if there is a court order or properly written agreement
- Maintenance paid to a spouse who is a party to the current action, but only if there is an existing order or a properly written agreement
- Child support paid pursuant to a court order or properly written agreement to a child who is not part of the pending action
- Public assistance
- Supplemental security income
- New York City or Yonkers income or earnings taxes actually paid
- Federal insurance contributions act (FICA) taxes.
3. CALCULATION OF CHILD SUPPORT
(a) Child Support for the Combined Income Under $130,000
DRL 240 1-b(c)(2) provides that for the combined income of both parent's up to $130,000, child support is based on applying the statutory percentages based on the number of children pursuant to DRL 240 1-b(b)(3). The result will be the total combined basic child support attributable to both parents for the first $130,000 of combined income.
- One child: 17%
- Two children: 25%
- Three children: 29%
- Four children: 31%
- Five children: no less than 35%
(b) Child Support for the Combined Income Over $130,000
DRL 240 1-b(c)(3) provides that for the combined adjusted gross income over $130,000, child support shall be calculated using either the factors listed in DRL 240 1-b(f) or the percentages under DRL 240 1-b(b)(3). Initially, it was understood that for the court to apply the percentages past $80,000, the reasons must satisfy the factors of DRL 240 1-b(f). But in Cassano v. Cassano 85 NY2d 649 (Court of Appeals, 1995), the court ruled that it was not necessary to state the factors of DRL 240 1-b(f) in order to apply the percentages past $130,000, but instead simply articulate a reason why it was doing so.
(c) High Income Cases
For high income cases, the court may set a cap which falls over the statutory cap but less than the total combined income. In Kaplan v Kaplan, 21 A.D.3d 993,(2nd Dept. 2005) Appellate Division affirmed the lower court's holding in applying CSSA guidelines to a combined income of $300,000 when the combined income was over $400,000. However, as there was an annual award of maintenance of $90,000 per year, the Appellate Division corrected the lower court's child support calculation and deducted that amount from the $300,000 cap pursuant to DRL 240 1-b(b)(5)(vii). However, these cases were decided before the cap was raised from $80,000 to $130,000, and it is unclear if the cap set by statute will be used instead of the case law.
(d) Calculate Each Parents Pro Rata Share of Child Support
From the combined basic child support as calculated above, each parent's share is prorated in the same proportion as each parent's income is to the combined parental income. DRL 240 1-b(c)(2)
4. DETERMINE THE PRO RATA ADD ONS TO BASIC CHILD SUPPORT
(a) Day Care
DRL 240 1-b(c)(4) and DRL 240 1-b(c)(6) provides that when a custodial parent is working, seeking work, or is in school or training which will lead to employment, reasonable day care expenses will be allocated in a ratio equal to the each parent's income to the combined income.
(b) Health Care Expenses
DRL 240 1(d) provides that the cost of health care insurance shall be allocated in the same proportion as each parent's income is to the combined parental income.
DRL 240 1-b(c)(5) provides that reasonable health care expenses not covered by insurance are allocated in the same proportion as each parent's income is to the combined parental income.
5. COLLEGE AND EDUCATION
In addition to basic child support, the court may award educational expenses pursuant to DRL 240 1-b(c)(7), in a manner determined by the court as to the best interests of the child. In determining whether or not to make this award, the court may consider traditional factors which were used prior to the enactment of DRL 240 1-b(c)(7), such as the educational background of the parents, the history of the parents in paying educational expenses to the subject child or other children they may have, the academic qualifications of the child, and the financial circumstances of the parents.
While college expenses are over and above basic child support, the courts have held that when a non custodial parent is paying for room and board when the child is away at school, they should receive a reduction from child support. Justino v. Justino, 238 A.D.2d 549 (2nd Dept. 1997), Reinisch v. Reinisch, 226 A.D.2d 615 (2nd Dept. 1996) Imhof v. Imhof, 259 A.D.2d 666 (2nd Dept. 1999), Vainchenker v. Vainchenker, 242 A.D. 2d 620 (2d Dept., 1997). This credit may also apply if the child is living away from home and attending college, and not just living on campus.
College expenses will generally not be awarded before it is determined that the child is actually going to college.
6. RETROACTIVE CHILD SUPPORT
Under DRL 240 1(j), an award of final child support is retroactive to the date that it was first requested. This date is the date of service of the summons and complaint (or summons with notice) containing the demand for child support. Likewise, a request for pendente lite child support is retroactive to the date of the motion. In calculating any retroactive child support, any payments made under a pendente lite order will be credited in determining the total retroactive amount. However, should the payments under the pendente lite order exceed the total due under the final order, no credit exits for the payor. See Baraby v. Baraby, 681 N.Y.2d 826 (3rd Dept. 1998) Rodgers v Rodgers, 98 A.D.2d 286 (2nd Dept. 1983), Foxx v. Foxx, 114 A.D.2d 605 (3rd Dept. 1985). However, in Coull v. Rottman, 35 A.D.3d 198 (1st Dept 2006) following a downward modification, the father was given a credit for overpayments to be applied against add-on expenses, but not basic child support.
7. TAX ASPECTS OF CHILD SUPPORT
Child support is not deductible by the non custodial parent and are not counted as income to the custodial parent. See IRS Publication 504 for more information.
Child Support is continued at New York Child Support: Special Situations.
The article "New York Child Support: How to Calculate Basic Child Support and add-ons" is provided as a free educational service by J. Douglas Barics, attorney at law, and does not constitute legal advice. Legal advice may only come from a qualified attorney who is familiar with the facts and circumstances of a specific case.
If you have any questions or comments, please feel free to contact Mr. Barics at firstname.lastname@example.org or (516) 742-2600. For more articles and information, please visit www.jdbar.com.
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