Child Support in New York: Where Income is Greater than the Cap

Although the Child Support Standards Act is somewhat straightforward on how child support works in New York, whether the parties were never married or were / are getting divorced, one issue that frequently comes up in New York courts is where the parties’ combined income exceeds the CSSA “cap” or ceiling, which is currently $141,000 annually.

New York City Is Expensive... Including Divorce

Although $141,000 may sound like a lot of money, the fact is that both living and getting divorced in New York are expensive propositions. Therefore, it is extremely important that, where the combined income of the parents exceeds that $141,000, the custodial parent makes sure that their lawyer or attorney shows the court why additional support should be granted, based on the additional income beyond the cap.

This is particularly the case in wealthier families where a child’s lifestyle would substantially change if support was only granted up to the cap in the CSSA. This is because without the courts going beyond the cap, parents whose combined income was $141,000 would have the same support obligation as parents making $500,000 each year, despite having different expenses, typically schooling and mortgage/rental costs.

Pursuant to New York Domestic Relations Law, or the DRL, courts consider a number of factors when determining whether or not to calculate additional child support beyond the $141,000 cap, and if so, how much. These factors include:

1. The financial resources of the custodial and non-custodial parent, and those of the child;

In other words, if the parents only exceed the cap by a limited amount, the court may not exercise its discretion to award additional support beyond the cap. Additionally, where the extra income can be mostly or completely attributed to the custodial parent, the court is less likely to award additional support.

2. The physical and emotional health of the child and his/her special needs and aptitudes;

For example, where the parties have children who have special educational or health needs, such as learning disabilities or illnesses, that are likely to incur increased costs over the years, New York courts are more likely to award additional support beyond the cap.

3. The standard of living the child would have enjoyed if the marriage or household not been dissolved;

Where the child would have enjoyed the benefit of the income beyond the cap had the parties stayed together, the court is far more likely to base its support calculation on an income beyond the cap.

For example, if a non-custodial parent suddenly wants to cut off a child’s extracurricular activities or no longer pay for the type of apartment the child was living in now that they parties are getting divorced, on the basis of such costs exceeding that parent’s pro rata share under the $141,000 cap, but that parent’s income is significantly higher than the cap, a court is likely to award support based on the income that was used to maintain that child’s lifestyle before the separation.

Courts do not look favorably upon wealthy non-custodial parents seeking to use the cap as a way to pay less for their children than they would have had they not separated from the other party.

4. The tax consequences to each parent;

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;

If the parents have a combined income exceeding $141,000, but the non-custodial parent is in school, their school expenses will be taken into account by the court when considering whether or not to do child support calculations based on a higher income.

7. A determination that the gross income of one parent is substantially less than the other parent’s gross income;

As stated above, if the custodial parent earns significantly far more than the parent paying support, a court is less likely to go beyond the statutory cap in calculating support. Often, this aspect will depend on what each parties’ pro rata share of their combined income is. The more that is accounted for by the non-custodial parent’s income, the more likely it is they will be expected to pay support on a calculation that the court does beyond the cap. However, regardless of parental income, New York courts very rarely will do any calculation based on a combined income beyond $500,000.

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, and the financial resources of any person obligated to support such children. However, this factor only applies if the resources available to support those children are less than the resources available to support the children who are subject to the current support action;

In other words, New York courts will take into account any children that the paying party has outside of the marriage that they also are responsible for providing for.

9. If the child is not on public assistance, the court will also consider extraordinary expenses incurred by the non-custodial parent in exercising visitation or expenses incurred by the non-custodial parent in extended visitation provided that the custodial parent’s expenses are substantially reduced as a result thereof (for example, international travel or entire summers spent with the non-custodial parent); and

10. Any other factor the court deems relevant in each case.

The court will also take into account the amount that the non-custodial parent will be paying for child support add-ons and additional expenses, such as education costs (often, private school or college tuition) of the parties’ child(ren), day care, and health care.

Overall, although $141,000 is the cap under New York law, courts have the power to do the same calculation with higher numbers that more accurately reflect the parents’ combined income. Therefore, if you and your spouse’s combined income is over $141,000 annually, the best thing to do is contact a lawyer or attorney to help you best protect your rights with respect to child support, whether it is seeking that the court calculate based on higher income, or showing why the court should stick to the cap alone.


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