Practitioner Post: Capping Child Support

The First Department recently reminded, yet again, that in determining where to cap parental income for child support purposes one should calibrate it to the actual needs of the child. Are we focusing too much on where the judges are putatively capping it for a particular county, rather than on the children's expenses? Should we be doing what the lower courts actually do or what they are supposed to do? And if we go by expenses, does that mean that we build in an increase when that five-year-old turns fifteen?

When we say that "NY County and Westchester are "now up to" 375K, what exactly do we mean? Because not every judge in the county will go that high. And when the monied spouse is making just over 375K they are less likely to do so than when s/he is making substantially over that amount. And is the custodial parent's income being taken into account in the so-called "combined parental income"? It is supposed to be yet many judges don't bother. So, again, do we do what the judges actually do or what they are supposed to do?

The easy answer to the ambiguity is that you lay everything out for the parties or the clients and let them decide. Yet there is a temptation to oversimplify, rather than to explain at length that although there is a "statutory formula" it is not nearly as predictable as one might think(even putting the (f) factors aside). I think we fear overwhelming them in the name of precision and thoroughness.

When and What to Tell the Children

The consensus among child psychologists is that the best time to tell the children that you are getting divorced is about a week before one of you leaves the marital residence. That way, you can be as specific and concrete as possible about what the future will look like: "Daddy will be living just a few blocks away. You can come see his apartment, etc." And it limits the time that they can get anxious about the very move itself, or caught up in the ambiguous situation of being told that a divorce is looming and yet there you remain, living together.

As hard as it may be for one of you, present the divorce as, if not a joint decision, then at least as "Mommy and daddy just cannot live together anymore" and if they ask you why, don't blame one parent in the name of honesty. You can avoid being dishonest without dumping information that they are not equipped to handle and should not have to try to handle. And the most damaging thing for them to know is that the precipitating event was an affair.

Tell them that they are not to blame for the divorce(they'll think they are), that you both love them and will continue to love them and be in their lives. And stress as many points of stability in their lives that you can: same school, same neighborhood, same friends, same apartment, etc.