Child Support under the New York Child Support Standards Act (CSSA).
How to Calculate Basic Child Support and add-ons under the CSSA guidelines
By J. Douglas Barics
Revised August 2019
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.
1. Child Support Standards Act is Mandatory
Each and every child support order or agreement must comply with the Child Support Standards Act. This requirement is mandatory cannot be waived by the parties our counsel. See DRL 240 (1-b)(h). Failure to do so will make any support order unenforceable and treated as a nullity. See David v Cruz (1st Dept 2013) and Cummins v Luna (3rd Dept 2017). See also Ball v Ball (3rd Dept. 2017).
If the parties wish to deviate from the Child Support Standards Act guideline amount by agreement, or if the Court determines that a deviation is proper, a guideline award under CSSA must still be calculated and stated, along with a reason why the CSSA amount is not being used.
2. The Income Cap on Child Support
In calculating child support, the guideline amount automatically applies to the combined income of both parents up to a set cap on combined income. For income over that amount, the court has the discretion to use the guidelines.
The original income cap was set in 1989 at $80,000. As this number was never amended by statute until 2010, case law evolved over the years to determine how much over the guideline was proper under the discretionary powers of the court. In 2010 the child support statute was amended and the $80,000 cap was replaced with $130,000, with an additional provision that this amount would be adjusted to account for inflation and costs of living.
As of March 1, 2019, the statutory income cap is $148,000.
3. The Two Elements of Child Support: "Basic" and "Add-ons"
New York child support consists of two elements; "basic" child support and the "add-ons," which are mandatory.
Basic child support is a set dollar amount of support set in accordance with the CSSA guidelines. It is calculated in two parts
(a) the support based on the first $148,000 of combined parental income (known as the $148,000 cap), and
(b) support based on the combined parental income over $148,000 up to a combined income set at the court's discretion.
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.
4. How to Calculate Basic Child Support under the Child Support Standards Guidelines
The child support guidelines require three steps to be followed in calculating child support under both Domestic Relations Law 240 (1-b) and Family Court Act 413. Failure to do so means the support order is not enforceable. (See David v Cruz, Cummins v Lune). Calculating guideline support is mandatory even when the guidelines are not used. Any deviation from the guidelines must still show what a guideline award of support.
The steps are as follows:
- Determine the combined parental income
- Apply the statutory percentages
- Pro rate each parent's share, with an additional adjustment for health insurance costs.
5. Calculate the Combined Parental Income
Both parent's adjusted income must be calculated, and combined to obtained the combined parental income. Adjusted gross income consists of mandatory income, plus additional income, if any, less deductions. Note that courts are not bound to use the income reported by either party and are authorized to impute income to either parent.
6. Total Gross Income of the Parties under the CSSA
(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 Domestic Relations Law 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.
Any maintenance received, either temporary maintenance under DRL 236 B(5-a) or post judgment maintenance under DRL 236 B(6) is added to the that spouses income. See DRL 236 B(5-a)(c)(1)(f) and DRL 236 B(6)(c)(1)(g).
- Read More: Spousal Maintenance
(d) 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). The Courts have repeatedly held they are not bound by either party's representation of their income. See Cummins v Lune, Fleming v McCloskey, Picone v Gollio, Rosenberg v Rosenberg.
7. Deductions from Income under the CSSA
From the total income, Domestic Relations Law 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
- Any maintenance paid, either temporary maintenance under DRL 236 B(5-a) or post judgment maintenance under DRL 236 B(6) is deducted to the that spouses income. See DRL 236 B(5-a)(c)(1)(f) and DRL 236 B(6)(c)(1)(g).
- 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.
Voluntary child support being paid without a court order can be deducted from income at the court's discretion.
8. Calculate the Income for Both Parents and Add them Together for the Combined Parental Income
For both parents, add the income, plus additional income, plus any imputed income. Subtract the mandatory and discretionary deductions. The result is the adjusted gross income as defined by the Child Support Standards Act. Note that income under the CSSA may be different than income for tax purposes, as income is not calculated the same way.
In addition, each parent's pro rata share of the combined income must be determined as a percentage. This percentage will be applied later in determining child support.
9. CSSA Percentages for Determining Child Support
DRL 240 (1-b) provides a percentage of income shall be used in determining child support.
- One child: 17%
- Two children: 25%
- Three children: 29%
- Four children: 31%
- Five children: no less than 35%
However, the percentages must be applied twice, once for income up to the CSSA cap and once for income which exceeds the cap.
(a) Child Support for the Combined Income Up to the CSSA Cap of $148,000
DRL 240 1-b(c)(2) provides that for the combined income of both parent's up to $148,000, child support is based on applying the statutory percentages based on the number of children pursuant to Domestic Relations Law 240 1-b(b)(3). The result will be the total combined basic child support attributable to both parents for the first $148,000 of combined income.
The percentages are applied to the combined income up to $148,000. The result is the basic child support attributable to both parents for the combined income up to $148,000.
(b) Child Support for the Combined Income Over the $148,000 CSSA Cap
DRL 240 1-b(c)(3) provides that for the combined adjusted gross income over $148,000 (or current cap), 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 the cap, but instead simply articulate a reason why it was doing so.
The Court need not use all combined income over $148,000, and it is the Court's discretion where to cap the combined income over $148,000. However, this second calculation is still required.
Assume combined income is $200,000. A support order will first calculate the child support on the first $148,000 by applying the percentages to the first $148,000 and pro rating this amount to each parent. Then the Court will use the remaining income of $52,000 and perform the same calculations again.
10. High Income Cases Under the Child Support Standards Act
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 in 2010 from $80,000 to $130,000, with an automatic adjustment built in. The older cases still provide guidance to the court, , but do not necessarily carry the same weight as the legislature has now set the new cap. In determining where to cap the income, the Courts will look at the facts of each case, taking into account such factors as the lifestyle of the parties and the support the child would have received had the family stayed intact. See Klauer v Abeliovich. (2nd Dept. 2017).
11. Determine Each Parent's Pro Rata Share of the Combined Child Support
From the combined basic child support as calculated above, (i.e the total support paid by both parents) 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).
There are two children. Under the statute, the percentage is 25%. If adjusted gross income for the custodial parent is $60,000 and the adjusted gross income for the non custodial parent is $40,000, the combined parental income is $100,000, with the custodial parent's share of combined income being 60% and the non custodial parent's share being 40%. The percentage of 25% results in the combined child support from both parents being $25,000 per year. Of this $25,000, 60% is attributable to the custodial parent and 40% is attributable to the non custodial parent. Forty percent of $25,000 is $10,000. The support order comes to $10,000 per year in basic child support under CSSA guidelines. As the combined income is under the statutory cap of $148,000, no further calculations are done.
12. Child Support: Health Insurance
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. The cost of health insurance is the cost of a family plan less the cost of an individual plan.
The monthly cost for a single individual is $300. The family plan is $500. The difference is $500 - $300 = $200.
Using the same ratio from the prior example, the custodial parent's pro rata share of combined income is 60% and the non custodial parent's share is 40%.
If the custodial parent is maintaining the health insurance, (i.e. incurring an extra $200 per month), the non custodial parent contributes 40% of this cost, which comes to $80 per month added to the child support to cover health insurance costs.
If the non custodial parent is maintaining the health insurance (i.e. incurring an extra $200 per month), the custodial parent pays 60% of this cost, which is $120 each month. This $120 is deducted from the child support amount to offset the extra $200 paid by the noncustodial parent to cover the children.
13. Child Support: The Add On Expenses
In addition to basic support, which is a fixed dollar amount, there are two additional mandatory add-ons, day care and unreimbursed medical expenses. Both of these add-ons are set as a percentage to each parent.
a. Day Care
Day care expenses is not automatic. Instead, DRL 240 1-b(c)(4) and DRL 240 1-b(c)(6) provides the conditions that must be met before day care can be ordered. These conditions are 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. But if the custodial parent does not meet these conditions, day care will not be awarded.
Day care expenses must also be reasonable under the circumstances.
The day care expenses will be part of the add-on section of any support order as a percentage attributable to each parent.
Parties can agree to use a fixed dollar amount, and the court can if circumstances warrant, set a fixed dollar amount based on the percentages.
b. Unreimbursed Health Care Expenses
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.
This expense will also be part of the add-on section of any support order, as a percentage attributable to each parent.
14. College and Educational Expenses as Part of Child Support
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.
15. Retroactive Child Support
Under Domestic Relations Law 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.
16. 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.
- Read More: Child Support: Special Situations
About J. Douglas Barics
J. Douglas Barics is a matrimonial attorney located in Commack NY who regularly represents individuals in all divorce and family law matters.
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