All states are required, under federal law, to use mathematical formulas as guidelines for determining the amount of child support payments, however the states are allowed some discretion in setting their own guidelines. In New York State, the amount of child support payments are determine by calculation using the combined adjusted gross income of the parents.
How Child Support Is Calculated in New York
Adjusted gross income is basically almost all income from any source minus social security taxes, medicare taxes, and city taxes. The combined adjusted gross income or “AGI” is then multiplied by a percentage which is based upon the number of children. In New York, the percentage for one child is 17%, while the percentage for two children is 25%
After applying the percentage, the result is allocated or divided between the parents, in proportion to their percentages of respective AGI’s. Although the amount of child support is “allocated”, in practice the way that it works is the non-custodial parent ends up with a child support obligation based upon the amount that is allocated to him (or in rare cases to her). The custodial parent pays nothing.
It is important to understand that this formula is based solely upon income, and expenses of either the parents or of the child or children are disregarded. This is different from other states, in particular New Jersey, where expenses are taken into account, as well many other factors, in particular the amount of time the child or children spends with each parent.
The Child Support Standards Act And The Cassano Income Cap
The New York statute, called the Child Support Standards Act or “CSSA’, has an ” income cap” which, as of the date of this post, was recently increased from $148,000 to $154,000. For many years after the CSSA was first passed, the cap remained unchanged, but in recent years it is changed regularly to reflect changes in the cost of living.
However the term “cap” is somewhat deceptive. In fact, New York Courts, pursuant to the case of Cassano v. Cassano, will sometimes put income limits on child support based upon the amount of the “cap”, will sometimes completely disregard the cap and apply the formula to the total amount of AGI, and will sometimes apply the guidelines formula (i.e. 17%, 25%, etc) to an amount above the cap but less than the total AGI, Courts have a great deal of discretion in deciding if and how the cap will be applied, making it difficult to predict the likely outcome.
The Cassano case is somewhat difficult to understand, even for lawyers. To understand the case, it is necessary to understand its context, as well as the context of how the CSSA came to be instituted. Before the CSSA, every child support case was decided on its own merits by the judge based upon its own unique facts. While this might sound like a good thing, it consumed a tremendous amount of time for the courts, and also resulted in situations where families with the same financial circumstances ended up with wildly different child support payments being ordered. In deciding cases prior to the CSSA the needs of the child or children was a major, if not the major factor in coming up with child support orders.
When Cassano was decided, the statutory “cap” was not yet being adjusted for increases in the cost of living. This was undoubtedly a factor that influenced the court’s decision. When I first read the decision I thought that the court was setting up a presumption that the formula would be applied to the total combined AGI, so that it was the burden of the non- custodial parent to prove that it would be unjust and inequitable to make him or her pay that much
However, the term “cap” by its plain meaning, is a barrier that must be overcome, and after re-reading Cassano, and reading a large number of subsequent cases in the appellate courts, I have concluded that there is no presumption, but instead the trial court must determine whether or not to go over the cap, and if so, by how much, based upon the factors which are listed in the Cassano decision.
The Cassano Factors
When the combined AGI is in excess of the statutory “cap” courts are required, under Cassano, to use any or all of ten factors in deciding whether to go over the cap, and if so, by how much. The tenth factor is a “catch all” factor which allows the court to consider any factor that either party believes is relevant. Obviously not all of the factors will be relevant to the facts of any particular case. Experienced child support lawyers will focus on the factor or factors which are most relevant.
Notably, the financial needs of the subject child or children is not listed as a factor. However, the cases recognize that the needs of the children remain an important, and oftentimes a very important factor in courts’ decision as to the amount of a child support order. Needs of the subject child can be considered under the “catch all” factor.
One of the factors listed is interesting in that it talks about the standard of living of the child or children of the “marriage or household”. It is important to understand that New York Courts have dealt with situations where one of the parents is extremely wealthy, and have had to grapple with the question of whether it is fair to order child support for an infant child in huge amounts of $20,000 a month or more.
Reported Decisions In NY Courts Using Cassano Factors
Because Cassano set 10 separate factors, including a “catch all” factor, that courts can use in deciding cases involving child support cases where total AGI is over the statutory cap, New York Court have wide discretion in coming up with am amount for child support orders. My own reading of reported cases, focusing on appellate decisions, reveals the following patterns:
- Lower court orders are usually upheld in the appellate courts.
- Most situations where lower court orders are reversed on appeal involve situations where the lower court failed to discuss the Cassano factors. These have resulted in reversals where lower courts either refused to go over the cap or went over the cap without explanation.
- Most of the time, when the appellate court reversed the lower court for failing to discuss or consider the Cassano factors the appellate court sent the case back to the trial court for a do over.
- Some cases were reversed whether the trial court cited some of the ten factors but failed to explain why and how these factors applied to the case. Here the appellate court usually sends the case back to the trial court for a do over.
- In a lesser number of cases, the case was reversed because even though the trial court considered the Cassano factors and explained their reasoning, the appellate court felt that the amount of the order was unjust or inappropriate. In these cases the appellate court often made its own orders.
- The appellate courts are more likely to reverse the trial court when the combined AGI is substantially higher than the amount of the cap.
- In the appellate cases that I have read needs of the child and a large disparity of income between the parties were cited as important factors.
- Almost all appellate cases that I have read involve children of a marriage. This is probably because, in general, incomes of married couples are higher than incomes of unmarried couples, and appeals are very expensive.
Because courts have such wide discretion in determining whether or not to go over the Cassano cap, and because there are so many factors potentially in play, it is extremely difficult to predict, even generally, what a court is likely to decide in a given case. This makes these cases hard to settle, but they can be expensive to try. That is why litigants should seek out experienced child support attorneys .