As with spousal support, determining child support starts with a formula based upon gross income. The intent behind the statute is to divide the cost of raising children between the parents based on income. As a result, it is very important that the income used for support purposes is correct, that it includes or excludes appropriately, especially where a party has their own business, is underemployed or has reduced earnings in anticipation of a divorce.
A presumptively correct amount is produced by the formula, then courts will determine whether the formula will be followed or not. As a result, a particular Rochester judge or their overall experience with several judges in the area.
After incomes are put into the appropriate formula, a presumptively correct amount comes out. In other words, the resulting number should be the amount of child support, unless that number, to the judge, is “unjust or inappropriate.” To make that determination, the statute lists various factors:
- The financial resources of the custodial and non-custodial parent, and those of the child;
- The physical and emotional health of the child and his/her special needs and aptitudes;
- 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 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 in calculating basic support, 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;
- 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 in each case.
It is significant to note that the children’s schedule is not an enumerated factor: so what happens in a 50/50 situation? Who pays child support, who receives it and why? What about cases of 60/40 time sharing, is there a proportional offset?
Whether a judge will depart from the guidelines requires an attorney who practices before with experience before the judges and matrimonial referees who will be deciding your case.
Mark Bezinque has significant experience in the greater Rochester area before judges and matrimonial referees addressing child support. He has lectured on the topic of child support, before judges and attorneys, on the application, changes and nuances of determining child support and has made similar presentations before mediators and the Collaborative Law Association of the Rochester Area.