The Child Support Standards Act authorizes parents to agree to a child support obligation that deviates from the presumptive formula provided in that statute. However, if they are going to deviate from the formula, the parents must state what the obligation would have been if the formula were to be applied, and the reasons why the parties have agreed to deviate.

In its September 26, 2018 decision in Fasano v. Fasano, the Appellate Division, Second Department, held that if one of those reasons no longer applies, such is a “substantial change in circumstances” warranting a new child support determination.

The parties were married in 1993 and have two children together. In October, 2012, the parties entered into a stipulation of settlement of a prior divorce action after which that action was discontinued.

That stipulation provided that although the husband’s monthly child support obligation using the C.S.S.A. calculation would be $1,994.45 on the first $130,000.00 of combined parental income (then, the “cap”) and $2,575.61 on the total combined parental income, the parties had agreed that the husband’s monthly child support obligation would be $1,500.00. The stipulation also provided that there would be no “add-ons” or “additional health costs” added to these child support payments, even though the C.S.S.A. generally provides that each parent’s share of unreimbursed health care expenses is to be prorated in the same proportion as each parent’s income is to the combined parental income.

The stipulation contained an explanation that the deviation from the C.S.S.A. calculation was necessary “to allow the [husband] to retain the marital residence as a place for the children to be with him when they are together” and had “been agreed by the parties to be in the best interests of the children to provide them continuity and stability in their living and educational environments.”

Continue Reading A Child Support Redetermination Is Warranted If a Stated Reason Parties Deviated From CSSA No Longer Applies

Two people fighting over money / business transaction / giving & taking money / shopping / divorce / power struggle / etc.

A decision last week of the Appellate Division, Second Department, points out that the rules concerning the recovery of overpayments of child support may not always be logical, and in the end may not best benefit the children the support was intended to benefit.

The parties in McGovern v. McGovern had executed a stipulation in 2007 that was incorporated but not merged into their judgment of divorce. The stipulation required the father to pay the mother child support each month for the parties’ two children. That obligation was to continue until, as is here relevant, one of the children began attending a residential college, at which point the child support obligation would be reduced. The stipulation also required the father to pay 60% of the children’s educational expenses, but allowed him to deduct any room and board payments which he made from his child support obligation.

In February 2014, the father filed a petition with the Westchester County Family Court seeking a downward modification of his child support obligation on the ground that the older child had started college in September 2011. The father also alleged that from September 2011 to February 2014, he overpaid child support because the Support Collection Unit failed to reduce his child support payments after the oldest child started college. As a result, the father requested an overpayment credit towards his child support obligation.

Continue Reading Recoupment of Child Support Overpayments From Add-on Expenses (College); Not Future Support

Trinity timesIn its February 18, 2016 decision in Michael J. D. V. Carolina E. P., the Appellate Division, First Department, held that because the trial court did not follow the precise requirements of the CSSA when determining that private school education and summer, extracurricular and weekend activities should be paid over and above basic child support, those awards would be vacated.

When making child support awards, the requirements of the Child Support Standards Act (CSSA) (Family Court Act §413 and Domestic Relations Law §240[1-b]) must be strictly followed. After the calculation of the basic periodic child support amount, the statute allows for the payment of certain categories of enumerated add on expenses, prorated according to the parents’ relative incomes.

The add on expenses expressly addressed in the CSSA are:

  1. child care expenses when a custodial parent is working, looking for work and/or engaged in an educational or training program that will lead to employment;
  2. health insurance and unreimbursed medical expenses; and
  3. educational expenses.

In the case before it, the parties were the parents of a son born December 17, 2008. The parties were never married and were not living together when the child was born. After the father learned he had a son, the mother and the child moved into the father’s luxury apartment in lower Manhattan. The parties were hopeful of continuing as a family and while living together, discussed marriage and the possibility of having a second child. They also discussed their son’s future, and the possibility he would attend a private school. It was their expectation at that time that the child would enjoy the “best of everything.” This living arrangement, however, was short-lived, lasting only four months (from May – August, 2009).

Continue Reading Child Support Awards of Private School Tuition and Activities Require Statement of Factors Considered