Child support and spousal support are determined in entirely different ways in the State of New York. Child support via a statutory formula and spousal support upon the weighing of a number of factors by the Court (or, perhaps the Judge just reads tea leaves or looks into a crystal ball).
Child support in the State of New York is determined based upon both parents’ incomes. Income, for the purposes of child support, is defined as any and all types of income as should have been declared on their most recent Federal income tax return plus investment income, income or compensation voluntarily deferred, income from workers’ compensation, disability income, unemployment insurance benefits, social security benefits, veterans benefits, pensions and retirement benefits, fellowships and stipends and annuity payments. Additionally, while not mandatory, the Court can also include nonincome producing assets, perquisites provided by an employer which constitute expenditures for personal use, fringe benefits, and money, goods or services provided by relatives and friends.
Should a spouse refuse to work or has voluntarily left employment or has become underemployed, the Court can impute income. This means, the Court can award child support payments to be made based upon what the party “should be” earning.
Once the parents’ incomes are determined, the Court will make the statutory deductions therefrom to determine what the combined parental income is. These deductions are as follows: unreimbursed business expenses, alimony or maintenance payments from a prior marriage, child support payments for children not parties to the case at bar, public assistance, supplemental security income, municipal income taxes and FICA taxes actually paid.
From there, the Court looks to the Social Services law to determine what percentage of the parties’ income is mandated by statute for child support. The current percentages are:
1 child = 17%;
2 children = 25%;
3 children = 29%;
4 children = 31%;
5 or more children = no less than 35%.
These percentages are applied to the first $141,000.00 of income. However, in the New York City area, the Court routinely applies the percentages to incomes well over this threshold. In order to do so, the Court must enlighten the parties, in their decision, as to its reasoning why, based upon any of the following statutory factors:
1. The financial resources of the custodial and non-custodial parent, and those of the child;
2. The physical and emotional health of the child and his/her special needs and aptitudes;
3. The standard of living the child would have enjoyed had the marriage or household not been dissolved;
4. The tax consequences to the parties;
5. The non-monetary contributions that the parents will make toward the care and well-being of the child;
6. The educational needs of either parent;
7. A determination that the gross income of one parent is substantially less than the other parent’s gross income;
8. The needs of the children of the non-custodial parent for whom the non-custodial parent is providing support who are not subject to the instant action and whose support has not been deducted from income pursuant to subclause (D) of clause (vii) of subparagraph five of paragraph (b) of this subdivision, and the financial resources of any person obligated to support such children, provided, however, that this factor may apply only if the resources available to support such children are less than the resources available to support the children who are subject to the instant action;
9. 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
10. Any other factors the court determines are relevant in each case. . ..
Finally, the Court will determine the statutory child support “add-ons”, namely: child care; health care; and education. These “add-ons” are customarily divided on a pro rata basis between the parties.
All of the above, taken together, equate to the amount of child support the non-custodial parent will pay to the custodial parent.
In New York, “spousal support” is termed “maintenance”. While the Legislature, in 2010, revamped the temporary spousal maintenance statute providing for a formulaic approach, final maintenance (maintenance adjudged at trial) remains with the discretion of the Court. The Legislature is working on remedying this dichotomy as I write this. However, until then, we are still stuck with the Judge’s discretion based upon the following factors:
1. The court must consider the income and property of the respective parties;
2. The duration of the marriage;
3. The age and health of the parties;
4. The present and future earning capacities of the parties;
5. Whether the party seeking maintenance needs to incur education or training expenses;
6. Whether there was a premarital jointly household and, if so, for how long and whether there has been, and for how long, a predivorce separate household;
7. Whether one party engaged in acts against the other party which inhibited or continue to inhibit earning capacity or ability to gain meaningful employment;
8. Whether the party seeking maintenance has the ability to become self-supporting and, if so, then consider the period of time and training necessary therefor;
9. Whether the party seeking maintenance has lost, or suffered reduction in, lifetime earning capacity as a result of having foregone or delayed education, training, employment, or career opportunities during the marriage;
10. The inclusion of the presence of children in the homes of the parties;
11. Whether the care of the children, stepchildren, disabled adult children or disabled adult stepchildren, elderly parents or in-laws inhibits or has inhibited a party’s earning capacity;
12. Consideration of the inability of a party to obtain meaningful employment due to age or absence from the workforce;
13. Consideration of the necessity to pay for exceptional additional expenses for children, including schooling, day care and medical treatment;
14. Consider the tax consequences that a maintenance award would have on each party;
15. Consideration of the equitable distribution of marital property;
16. Consider the contributions of the maintenance-seeking spouse as a spouse, parent, wage earner, homemaker and career enhancer;
17. The wasteful dissipation of marital assets;
18. Consider any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration;
19. Consider loss of health insurance;
20. Any other factor which the court shall expressly find to be just and proper (some Courts will take “marital fault” into account, if such fault is alleged).
At trial, if you are the spouse seeking maintenance, your attorney will bring forth evidence and elicit testimony regarding all of the applicable factors. It must be shown to the Court that, without spousal maintenance, you will be unable to re-establish yourself in the workforce and continue to live a similar lifestyle you enjoyed during your marriage. You must remember that litigation is not an exact science and no attorney can guarantee the type of maintenance award a Court will grant. As always, preparation is the key, including the use of experts (accountants, lifestyle analysts), in ensuring that the Court has all available information at its fingertips when making a decision on spousal maintenance at trial.