New York vs. New Jersey: a Child Support Difference
One of the most significant family law differences between NY and NJ is the calculation of child support. More of this difference will be highlighted in future e-Newsletters, but in sum: While both are “formula” based, NJ considers income, parenting time, and ages and number of children as opposed to NY which considers only income and number of children.
New Jersey’s calculation of Basic Child Support is based on net income while New York’s calculation is based on approximate gross income, or more accurately, based on a defined term of “CSSA income” which subtracts out in the first instance only local NYC / Yonker taxes (as well as FICA). In contrast, the child support income calculation in NJ subtracts out all taxes- local, state and federal.
While I assume each state factored in this difference in developing their Basic Child Support formula, there is a significant difference when it comes to the pro rata allocation of the Add-On Expenses (what is called “Supplemental Child Support Expenses” in NJ). While both states allocate these Add-On categories of child expenses based on pro rata share of income, the differing definitions of income will lead to a different pro rata share. The differing amounts could be significant, especially when one side has high income and where there are significant Add-On Expenses, such as private school, summer camps, or child therapy, and especially when there might be multiple children.
While this difference always existed, it has become more pronounced with the loss of the Alimony tax deduction to the payor spouse. When calculating the pro rata allocation in NY, how often do we calculate the real net income available to the parties as opposed to their gross income? Is that really a fair sharing of these expenses?
While the child support formula is clear, it remains only presumptive. In my practice, I try to inform my clients of these differences in our attempt to be mindful of the real after-tax sharing of these expenses and have the clients make their own decision on what they feel is the most fair.
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