Randy Perskin: Discussing Divorce

Both parents remain responsible for the support of their children subsequent to divorce. Generally, support ends when the children reach their majority at 21. However there are circumstances in which support can be terminated earlier. If, for example, a minor marries, enters the military or retains a full time job which enables him to support himself, his parents are no longer legally obligated to pay his bills.

Child support refers to an amount paid by the non custodial parent for the benefit of his children. Although both parents remain liable for their children’s support, it is implied that the custodial parent will use her own funds in addition to the support payments she is receiving from her ex spouse to cover these expenses. Payments are made to the custodial spouse or in a manner directed by the court or stipulated to in a separation agreement. The non custodial parent does not live with his children but remains responsible for their support. The custodial parent resides with her children and is also responsible for their maintenance.

Basic child support is determined by the court using a mathematical equation. In New York, the combined parental income is calculated and multiplied by the appropriate “child support percentage” , based on the number of children in the family. Income in this instance refers to gross income as reported on the most recent federal tax return. Social security as well as New York City and Yonkers income taxes are deducted in order to determine combined income. The “child support percentages” are as follows:

• 17% of combined parental income for one child
• 25% of combined parental income for two children
• 29% of combined parental income for three children
• 31% of combined parental income for four children
• No less than 35% of combined parental income for five or more children
• If there are five or more children in the family, the court must use its discretion in fixing the child support percentage

If the combined parental income exceeds $80,000 the court must determine the amount of child support owed on the overage.

In addition, the court, in its discretion, can include education and health care or insurance costs as part of child support payments.

A divorcing couple can agree to the amount of child support if the stipulation is in writing. The agreement must state that the parties have been advised that the “basic child support obligation” provided in Domestic Relations Law section 240(1-b) and Family Court Act section 413(1)(b) would presumptively result in the correct amount of child support to be awarded. In the event the agreement specifies a different amount than would otherwise be provided it must specify the amount the basic child support obligation would have been and the reason a different amount is being applied. If these provisions are not included in an agreement relating to child support the stipulation will not be valid. Basically the parties should be aware of their rights and knowingly waive them.

There are valid reasons to agree to an amount of child support that is different from the obligation which would have been calculated by a judge. Before making the decision to accept less however, it behooves you to know the amount of child support you would otherwise be entitled to receive.