During the divorce, the children generally live or spend the bulk of their time with one parent. Therefore, the parent who is the primary residential parent is entitled to child support. If the primary residential parent is non-income generating or has a lesser income than the non-residential parent, the non-residential parent with the higher pay will be responsible for child support during the pendency of the action. New York has guidelines for child support, which is percentages of income. Child support is a portion between the parties.
If, for instance, one child is living with the mother, the father is making $100,000 a year, and the mother is making $50,000 a year, the father would then be responsible for two-thirds of the statutory amount of child support, and the mother would be responsible for one-third of the essential child support. But, on top of basic child support, there is something called add-ons. For instance, health insurance for the child, someone has to pay the premiums for that. So that can also be apportioned between the parents. Also, the unreimbursed medical expenses, extracurricular activities, after-school activities, and things of that nature must be factored in. So it is not as basic as writing a flat check every month, and there can be other incidental expenses dealing with child support.
Depending upon the socioeconomic state of the parties and where they may reside, if the children or a child is in private school, there’s a question of who pays for the private school. That also can be apportioned between the parties based on their relevant incomes. Once you get past the action and the divorce has been entered, if the parties have not agreed on child support and the incidentals or the add-ons, there is once again a formula and guidelines. The parent that is the primary residential parent is the recipient of child support. The non-residential parent is the payer, which is why on many occasions, one spouse may argue for more time because they think it will cause a reduction in child support. It doesn’t quite work that way, but principally, the lesser income parent will be the recipient if that lesser income parent is the primary residential parent.
How Is The Amount Of Child Support Determined Or Calculated In New York?
New York has a statute, which is the guideline for the court. On the first $140,000 of combined parental income, it’s 17% of that number if there’s one child. If there are two children, it’s 25% of that number; three children, 27%, and it caps out at around 31%. It is then apportioned between the parents. If the parent earning the one-third is a residential parent, that parent will receive two-thirds of 17% of a $150,000 for child support plus some additional money for add-ons.
There’s a caveat that everyone should be aware of. The cap at $148,000 is a statutory cap, but the court can go beyond that. The theory behind it is the child should not be denied the lifestyle that the parties created for that child just because they’re going through a divorce. This is one reason I said earlier that it’s imperative to gather the records in anticipation of a divorce to show what the standard of living has been in the event you go in and make an application for child support, for instance.
There was one very famous case in New York where the father was a multimillionaire, and he said, “But my child doesn’t have caviar for breakfast every morning, my child has Rice Krispies like every other child every morning.”
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