As many separating couples with children know, child support in New York is subject to a mathematical formula. But just because there is a formula to determine the amount of child support does not mean a Court or Judge has to follow it. This is where a deviation from the standard child support percentages comes into play.

A deviation occurs is when the parents agree between themselves to a lesser of higher amount of child support than is dictated by the formula, or when a Judge or Support Magistrate decides that it is not in the best interest of the parents to apply the statutory amounts set forth by state law. The Judge or Magistrate can make the payments lower or higher, depending on the parents’ individual incomes and extenuating circumstances, such as the child’s needs or the financial circumstances of the parents. A deviation can be applied at the onset of the proceeding or later, if there is a change in a parent’s income or the child’s circumstances.

The child support formula in New York involves taking a percentage of the parents’ combined adjusted gross income. The more children involved, the higher the percentage of combined adjusted gross income, as seen below:

• 1 child – 17 percent
• 2 children – 25 percent
• 3 children – 29 percent
• 4 children – 31 percent
• 5 or more children – at least 35 percent

For example, if a couple has two children and the parents’ combined adjusted annual gross income – what they make before certain taxes and deductions – is $80,000, the two children would be entitled to 25 percent of the $80,000 income, or $20,000 a year. How much of that is paid by one parent to the other (the custodial parent) depends on the paying parent’s pro rata share of the combined 80,000 income. So if the paying parent earns $50,000 of the $80,000 combined income, that parent will pay 62.5% of the $20,000 annual sum, or$12,500 a year.

If math was all a Judge or Magistrate would have to do, support proceedings and divorces would be easier and faster. However, the parent who would have to pay child support may not be able to afford his or her share of the $20,000 per year. This is when a Judge or Magistrate may be open to considering why a deviation from the statutory amount should be granted.

One of the key factors in determining child support is the parent’s ability to pay. If the non-custodial parent’s income would fall below the federal poverty line (currently set at $12,060) or below the self-support reserve threshold ($16,281), as a result of the support award they have to pay, then the judge has the discretion to consider a deviation from the statutory amount of child support.

This isn’t to say that the non-custodial parent’s income has to fall below a certain amount for a Judge or Magistrate to grant a deviation. In fact, there are several statutory factors that the Court is allowed to consider, some of which can occur long after the support proceeding is over or the divorce agreement is finalized and may give rise to seek a modification of an award such as:

• The custodial parent’s income is greater than the non-custodial parent’s income
• One of the parents loses their job or has lost income from other sources through no fault of their own
• A child may require medical or mental health care that exceeds what child support can adequately account for
• The child’s standard of living will decrease because there isn’t enough child support coming to the custodial parent
• The costs of the custodial parent for housing or related expenses are greatly reduced based on their unique circumstances
• There are extraordinary costs associated with the non-custodial parent’s visitation or parenting times
• The parents share equally in custody and parenting time with the children

Basically, the Judge or Magistrate, and certainly the parents themselves, has the discretion to deviate from the child support formula whenever circumstances call for it. As long as the end result is that the child’s quality of life remains similar, and each parent is contributing to the care and costs associated with the child, that’s what matters most to a Judge or Magistrate.

Some deviations are not related to the actual payments of regular support, but are related to the percentages each parent contributes to ancillary costs and expenses for the child. Typically, each parent’s adjusted gross income is compared to the other (pro rata), and each parent is then responsible for that percentage of uncovered medical or day care costs, and the like. For example, if the custodial parent has an adjusted gross income of $45,000 and the non-custodial parent has adjusted gross income of $55,000, the combined parental adjusted gross income is $100,000. This example, in simple terms, shows that the custodial parent would be responsible for 45% of the ancillary costs associated with the child, and the non-custodial parent is responsible for 55% of the associated ancillary costs. So the custodial parent is responsible for 45% of day care costs, uncovered medical costs and the like.

But these percentages can also be deviated from by agreement, or a Judge or Magistrate can do so.  Any deviation must have a sound and clear basis, and only certain types of circumstances will apply, but if your situation has unique factors that might make an application for deviation possible, you should consider the presenting those various factors to the Court.

When entering divorce or support negotiations, parents should discuss child support matters with their respective attorneys to get an idea of how amounts are determined and how it will impact them. If the either the custodial or non-custodial parent wants to seek a deviation, his or her attorney can present it to the Family Court Magistrate or Supreme Court Judge, who can then consider the merits of the proposal. Not all deviations are granted, and if one is, it is expected that the non-custodial parent meets his or her obligations on a timely basis – just as one would expect someone to pay child support of any amount.

Christine F. Redfield, Esq. is a family and matrimonial attorney at Tully Rinckey PLLC’s Rochester office who focuses her practice on divorce and child custody cases.