New York Child Support Frequently Asked Questions
A. In New York, both parents are responsible for supporting a child, but child support is generally considered to be the money a noncustodial parent pays a custodial parent to help support the child. A court will look well beyond food and clothing to things such as educational expenses, health insurance, medical care and child care while the custodial parent is at work.Q. I was never married to my child’s other parent. Can I get child support in New York?
A. Yes, if you have custody of the child you can get child support, but you must establish paternity with an Acknowledgment of Paternity or an Order of Filiation.Q. My ex-spouse says they will not pay me child support, because I can afford to support the child myself. Can my ex-spouse refuse to pay child support?
A. No, the custodial parent can get child support from their child’s other parent even if the custodial parent can afford to support the child alone. Also, it does not matter whether or not you were married.Q. Can I ask a court for child support if I’m still living with my child’s other parent?
A. Yes, in New York you can get a court order for child support even if you are living with the child’s other parent if that parent refuses to help pay for the child’s expenses.Q. Do I still have to support my child who is in foster care?
A. Yes, if your child is in foster care, both parents still have a legal obligation to support the child.Q. How long will I have to pay child support?
A. Parents must support their children in New York until they are 21 years of age or emancipated.Q. How much child support will I have to pay?
A. The New York laws on calculating child support are Domestic Relations Law section 240 (1-b) and the Family Court Act section 413(1)(b). As a starting point, child support is based a statutory formula that adds the income of both parents and multiplies that by statutory child support percentage based on the number of children. These percentages are:
- 17% of the combined parental income for one child
- 25% of the combined parental income for two children
- 29% of the combined parental income for three children
- 31% of the combined parental income for four children
- No less than 35% of the combined parental income for five or more children.
The formula has a cap for combined incomes, which at the time of this writing is $143,000, but it is adjusted periodically. Should the combined incomes exceed that amount, the court may still use the formula for all of the income, or it can only use it for only the cap amount. A court will often just ignore the cap, but sometimes might impose it if the noncustodial parent can show they are very involved and already paying above and beyond child support for the child’s expenses. A court will also look at these factors:
- the financial resources of the child and each parent
- the child’s physical and emotional health and any special needs and aptitudes
- the standard of living the child would have enjoyed if not for the divorce
- the tax consequences to each spouse
- the non-monetary contributions that the parents will make toward the care and well-being of the child
- the educational needs of either parent
- whether one parent’s gross income is substantially less than the other parent's gross income
- the needs of any other children of the non-custodial parent for whom that parent is providing support
A. Here is a simple example of the basic formula: You have one child, and you have physical custody. Your income is $30,000 per year and your ex-spouse has an income of $90,000 per year. Your combined incomes are $120,000.
The court multiplies your combined incomes by the statutory percentage for one child.
So $20,400 is the basic child support obligation. You are responsible for 25% of $20,4000, which is $5100, because your income ($30,000) is 25% of the combined parental income of $120,000. The other parent must pay 75% ($15,300).
Therefore, your ex-spouse must pay you $15,300 in child support over the year. Since you have physical custody of your child, there is a presumption that you are spending your share on your child’s expenses. Of course, should the child have additional expenses such as large medical expenses, both parents must pay.Q. How do I get an order for child support?
A. You can execute a properly written agreement with your child’s other parent and submit it to the court for approval, or you can file a petition for support in Family Court.Q. Do I have to pay child support if I don’t have a job?
A. If you don’t have a job, you may still have income you can use to pay child support. This would include benefits such as disability, veterans, retirement, unemployment and social security. It would also include pensions, workers’ compensation and annuity payments.Q. What if I cannot pay the amount of child support the court has ordered?
A. Should the court calculate an amount you cannot pay, your lawyer will need to present evidence to the proper New York court that the amount is impractical given your financial situation.Q. How can I request the court for a decrease in child support?
A. If you have suffered a significant financial setback such as losing your job, your attorney can petition the court for a modification in child support. Your attorney will file the petition with the same court which originally ordered your child support.Q. Can the judge order the child support amount my ex-spouse and I agreed to in our separation agreement?
A. Yes, the judge can order an amount you agreed on that is different from the statutory calculation. You can waive statutory child support obligations as long as your waiver has the correct format and content to protect both parties. The court wants to be sure parties understand the rights they are waiving. You will want to consult with your lawyer.Q. I am behind in my child support. Can I ask the court to reduce the amount I owe for past missed payments?
A. No, in New York, the only person who can forgive missed payments is the person to whom you owe them.