WHEN A DIVORCE IS SETTLED THROUGH NEGOTIATION, ARE THE PARTIES FREE TO DECIDE CHILD SUPPORT OBLIGATIONS ON THEIR OWN?
If divorcing or separating parties have children under the age of 21, then the payment of child support becomes an issue that must be resolved. If the parties were to proceed to court, then the presiding Justice will be given the authority and mandate to determine the amount of child support to be paid by one parent to the other. The Justice must be guided by the law and in that situation, the Child Support Standards Act, or “CSSA”, a federal law adopted by New York State, would control. The CSSA sets forth a formula for determining child support, and calculations are based upon the parties’ respective incomes and number of children to receive support. However, the Justice may find that factors exist to “deviate” from the “presumptively correct amount of basic child support” and enter an Order that may be below the CSSA amount or sometimes above it.
But when parties are not desirous of turning this issue over to a Justice to determine and are instead, working towards negotiating and settling their divorce or separation, either with the help and counsel of their respective attorneys, or possibly through divorce mediation, then the parties themselves, within certain limits, may determine their child support obligations, notwithstanding the formulaic approach applied under the CSSA.
In a negotiated situation, the CSSA must be the starting point for determining basic child support obligations between the parties. But after that, the parties may look at the totality of their financial circumstances, the children’s needs and consider large expenses for children such as college for example, and then craft a number that works for them and their children. By agreement then, the parties are free to decide how much child support should be paid and this number may differ substantially from what a Court might do.
However, although the parties may come up with a child support number that THEY agree upon, ultimately, their settlement agreement whether stemming from a negotiated settlement or mediated settlement, will, upon submission to the Supreme Court in order to grant a judgment of divorce to the plaintiff parent, review the settlement agreement and if the child support amount agreed upon is substantially lower than what would otherwise be determined under the strict application of the CSSA formula, the agreement must state with particularity, WHY the amount agreed upon “deviates from the presumptively correct (CSSA) amount of basic child support.”
Most often, this is adequately explained to the Court in the parties’ agreement and there is no problem, but the reviewing Justice has the power to reject the negotiated amount of child support based upon what he or she perceives as being NOT “in the best interests of the children.”
That rejection will cause their agreement to be rejected by the Court and require the parties to revisit this issue and amend their settlement or separation agreement so as to overcome the Court’s concerns.
To better understand how child support is calculated in Nassau and Suffolk County New York divorces and separations and how your particular facts and circumstances could impact this important issue, you are invited to contact Robert B. Pollack, Esq., principal attorney of The Pollack Law Firm, P.C.
The Pollack Law Firm, P.C., serving clients in Nassau and Suffolk County, is always available to assist and represent parties in divorce and all other matrimonial and family law matters. Please call today to schedule a free consultation: (516) 938-3330.
By Robert B. Pollack, Esq., principal attorney at The Pollack Law Firm, P.C. : Our firm is solely focused on Nassau and Suffolk County divorce, separation and all phases of matrimonial law, family law and mediation—
DISCLAIMER: This article is intended to provide only general information for entertainment purposes and should never be relied upon as legal advice. One should seek the assistance of experienced matrimonial counsel to assist in explaining the law, options and making important decisions in any divorce, matrimonial or any family law matter. By reading this article, no attorney / client relationship arises in any manner whatsoever.