Child Support in New York: How Is It Calculated?

Whenever children are involved, the court must render a child support award in a divorce or custody case to ensure that the children have the resources they need to support their well-being. In New York, child support is available for children who are unmarried, unemancipated and under 21 years old. Support is calculated pursuant to Domestic Relations Law Section 240 (1-b) and the Family Court Act Section 413 (1) using a formula that takes into account the income of both parents and the number of children being supported. The combined income is multiplied by a percentage based on the number of children: 17% for one child; 25% for two children; 29% for three children; 31% for four children; and no less than 35% for five or more children. Then, from that sum, the court allocates support between the parents based on the percentage that each parent’s income contributes to the total combined income.

The formula is not straightforward because, in accordance with Social Services Law § 111-i, the court is only required to apply the formula to a combined income of $154,000. When the combined parental income amount exceeds the current cap of $154,000, the law does not require the court to apply the formula to the entire amount of combined income. However, the court may choose to factor in a larger amount of the income and has the discretion to add additional support as it sees fit.

The Domestic Relations Law Section 240 (1-b) states, “the court shall determine the amount of child support for the amount of the combined parental income in excess of such dollar amount through consideration of the factors set forth in paragraph (f) of this subdivision and/or the child support percentage.” Therefore, when deciding whether to factor in additional need based on the excess income above the cap, the court may take the amount in excess of the income cap and apply the child support percentages (based on number of children) to determine what should be paid in support out of the excess. The court will also look at the following factors laid out in paragraph (f) to determine if additional support is appropriate, including:

The financial resources of the parents and of the child;
The physical and emotional health of the child and any special needs;
The standard of living the child would have enjoyed had the marriage or household not been dissolved;
The tax consequences to the parties;
The non-monetary contributions that the parents will make toward the care and well-being of the child;
The educational needs of either parent;
A determination that the gross income of one parent is substantially less than the other parent’s gross income;
The needs of other children receiving child support from the non-custodial parent who are not subject to the instant action;
Provided that the child is not on public assistance (i) extraordinary expenses incurred by the non-custodial parent in exercising visitation, or (ii) expenses incurred by the non-custodial parent in extended visitation provided that the custodial parent’s expenses are substantially reduced as a result thereof; and
Any other factors the court determines are relevant.

When choosing to award support based on the excess income, the court must give an explanation for the basis for its calculation of child support. Cassano v. Cassano, 85 N.Y.2d 649 (1995). After looking at the factors laid out in the Domestic Relations Law and the lifestyle of the children, a court will determine how much income above the cap is necessary to factor in. An award of child support based on excess income “should be based on the child’s actual needs and the amount that is required for the child to live an appropriate lifestyle, rather than the wealth of one or both parties.” Doscher v. Doscher, 137 A.D.3d 962 (App. Div. 2nd Dept. 2016) (basing support upon income of $360,000, where total amount of combined income available was $600,000). In L.P. v. C.B., 48 Misc. 3d 1208(A) (Sup. Ct. 2015), the Court chose to award pendente lite (temporary) child support based on the full combined income of the parents, $299,533.45. The Court came out similarly in Matter of Hipp v. Ryan, 188 A.D.3d 1206 (App. Div. 2nd Dept. 2020), basing support upon the total combined income of $211,220.52. In Spinner v. Spinner, 188 A.D.3d 748 (App. Div. 2nd Dept. 2020), the Court found that the children “lived a middle-class lifestyle,” and subsequently chose to base the support on the combined parental income of $250,000, rather than $400,000.

However, in Matter of Murray v. Murray, 164 A.D.3d 1451 (App. Div. 2nd Dept. 2018), where the parties’ combined income was $371,697.08, the court declined to go above the income cap when calculating child support because the non-custodial parent was also responsible for the family health insurance, the children’s college expenses, the home equity loan on the former marital residence, and had two other dependents of his own. In Rosenstock v. Rosenstock, 53 Misc. 3d 1218(A) (Sup. Ct. 2016), the Court also declined to award child support based on excess income to the father because he was the custodial parent and had been earning income alone that exceeded the cap, so the children’s financial needs did not require additional support.

On the flip side, the court may also deviate from the typical child support formula if the basic child support obligation would place the non-custodial parent below the poverty level or below the self-support reserve. The current poverty income guideline amount for a single person is $12,760 and the current self-support reserve is $17,226. In the case where the non-custodial parent would find themselves under the poverty level, the child support obligation would be $25 per month, unless the court finds such obligation to be unjust or inappropriate. In the case where the non-custodial parent would be below the self-support reserve but above the poverty level, the support obligation would be $50 per month or the difference between the non-custodial parent’s income and the self-support reserve (whichever is greater).

Child support calculations can be tricky. There are many factors to take into consideration to ensure a fair outcome for all parties involved. If you are a parent involved in a custody dispute, it is important to hire a family law attorney to understand what child support obligations may arise. The attorneys at Fass & Greenberg have the knowledge and experience to guide you through the process to ensure the best outcome for all.