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Spousal & Child Support

Spousal Maintenance

There is a formula for determining interim (meaning, while a divorce action is pending) and post-divorce spousal maintenance. The application of the formula will determine whether there is enough of a difference between the parties’ respective incomes to warrant an award of spousal maintenance under the formula.

A court may deviate from the formula if it determines it would be “unjust or inappropriate” to apply the formula. And, if there is a deviation from the formula, the court (or the parties if there is an agreement) must state what the amount of spousal maintenance would be if the formula were used and the reasons for the deviation based upon various statutory factors which must be explained in writing by the court (or in an agreement).

This formula is used with a statutory cap of $203,000 of the payor's income. (The statutory cap gets adjusted upward periodically.) For income above $203,000, any additional maintenance the court may award will be discretionary and based upon various statutory factors.

Some of these statutory factors include:

• the age and health of the parties
• the present or future earning capacity of the parties, including a history of limited participation in the workforce
• the wasteful dissipation of marital property
• acts by one party against another that have inhibited a party’s earning capacity such as domestic violence
• the availability and cost of medical insurance
• the standard of living of the parties established during the marriage
• the equitable distribution of marital property
• other factors.

In an agreement, the parties may "opt out" from using the formula. For such “opt out” provisions to be valid, the agreement must state what spousal maintenance would be if the formula were applied and the reasons the parties are deviating from the formula.
The spousal maintenance statute also provides “guidelines” for determining the duration of spousal maintenance.

The duration of post-divorce maintenance is based upon an advisory schedule as follows:

• For marriages up to 15 years in length, 15-30% of the duration of the marriage
• For marriages more than 15 years but not exceeding 20 years, 30-40% of the duration of the marriage.
• For marriages more than 20 years, 35-50% of the duration of the marriage. The court could also award "non-durational" maintenance.

A party may seek to modify a post-divorce judgment award of spousal maintenance upon partial or full retirement of the payor if the retirement causes a substantial change in the payor's financial circumstances.

Child Support

In New York State, there is a formula for determining the amount of “basic” child support as well as allocating or pro-rating certain “add-ons” expenses. “Basic” child support gets paid to the parent with whom the children primarily reside and typically gets paid weekly, biweekly, or monthly. “Basic” child support includes many basic expenses for the children such as housing, utilities, food, and clothing, but does not include many other types of expenses such as for religious ceremonies, extracurricular activities, a cell-phone, car insurance, etc. These items would have to be negotiated for depending upon the financial circumstances of the parties.

In its simplest terms, in order to determine the amount of basic child support to be paid under the formula, start with the "gross” combined parental income of both parents, deduct FICA (Social Security and Medicare), deduct other allowable deductions, and multiply that number by the applicable % depending upon the number of unemancipated 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. This net amount would then get pro-rated between the parties.

The formula must be applied to the first $163,000 of combined parental income. (This amount gets adjusted upward periodically.) When there is a combined parental income above $163,000, the court may apply the formula, apply certain statutory factors, or a combination of the two, and the court should state why the court is doing so.

In addition to basic child support, there are certain add-on expenses which are either “mandatory” or “discretionary”.

The mandatory add-on expenses include:

• health insurance
• uninsured health related expenses
• child care expenses

The discretionary add-on expenses include:

• Private or parochial school
• College expenses.

The mandatory add-on expenses get pro-rated between the parties. The discretionary add-on expenses may be allocated differently.
Either the parties or the court may deviate or “opt out” from applying the formula. But if that is done, the agreement or court order must state what child support would be if the formula were applied, and must also state the reasons why the parties or the court is deviating from the formula.

Life insurance is typically provided for to help secure the child support obligations (as well as spousal maintenance obligations).

When does child support end?

In New York State, there is no legal obligation to support a child after turning age twenty-one (21) unless a child is “developmentally disabled”, in which case there can be an obligation to support such a child until age 26. Also, recognizing that most children are still in college when they turn age 21, and depending upon the financial circumstances of the parents, many parents often obligate themselves to contribute toward college expenses or provide other financial support for children over age 21 until some other agreed upon trigger event(s) such as turning age 22.