TITLE OF BILL: An act to amend the social services law and the
domestic relations law, in relation to income amounts to be utilized
in issuing orders of child support and temporary spousal maintenance
in supreme and family court
This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of her Family
Court Advisory and Rules Committee and the Matrimonial Practice
This measure would revise the method of calculation for the State's
Child Support Standards Act and Temporary Maintenance Guidelines
In 2009, the Legislature enacted the Child Support Modernization Act
(L. 2009, c. 343), which, for the first time in two decades, raised
the combined parental income benchmark used to calculate child support
under the Child Support Standards Act (Family Court Act § 413).
Colloquially known as the child support "cap," the figure was raised
from $80,000 to $130,000, with a built-in mechanism for indexing and
adjusting the figure every two years depending upon changes in the
Consumer Price Index. For combined parental incomes up to the
benchmark amount, the Child Support Standards Act percentages must be
presumptively applied, that is, 17% of combined parental income for
families with one child, 25% of combined income for families with two
children, 29% for three children, 31% for four children and not less
than 35% of income for five or more children. For amounts in excess
of the benchmark, which has been adjusted as of January 31, 2014 to
$141,000, the Supreme or Family Court is required to consider the ten
factors enumerated in section 413 (1)(f) of the Family Court Act and
section 240(1b)(f) of the Domestic Relations Law and determine whether
application of the CSSA percentages to income in excess of that
threshold would be "unjust or inappropriate." The court may adjust its
determination based upon the ten factors or continue to apply the CSSA
percentages or may apply a combination of both approaches. See Family
Court Act § 413(1)(c)(3); D.R.L. § 240(1-b)(c)(3). As the State Office
of Temporary and Disability Assistance stated in its Memorandum in
Support of chapter 343.
This provision will serve to increase the consistency of support
orders throughout the State by updating the combined parental income
amount utilized by the court in calculating support obligations to
reflect current economic realities, thereby leaving only exceptional
income cases to potentially be determined outside the presumptively
correct CSSA percentages.
Clearly, salutary experience under the 2009 CSSA statute has furthered
this goal. However, an anomaly in the language describing the means by
which the combined parental income benchmark is calculated has led to
unforeseen results that may be disproportionate to the actual rate of
inflation. A similar anomaly exists in the Temporary Maintenance
Guidelines statute adopted by the Legislature in 2010 as a new
subdivision (5-a) to part B of section 236 of the Domestic Relations
Law, setting forth a mathematical formula and factors for determining
a temporary maintenance award. The court must award the presumptive
guideline amount unless it finds it to be "unjust or inappropriate."
In the latter case, the court may adjust the amount upon consideration
of 17 factors.
The statute set an initial "income cap" of $500,000 (which has been
adjusted as of January 31, 2014 to $543,000). The statute provided
that the cap was to be adjusted every two years thereafter, starting
on January 31, 2012, based upon the Consumer Price Index. Where the
payor's income does not exceed the income cap, the guideline amount
for temporary maintenance would be the lesser of 30% of the payor's
income, minus 20% of the payee's income; or 40% of the SUM of the
payor's income and the payee's income, MINUS the payee's income.
Where the payor's income exceeds the income cap, the temporary
maintenance award guideline is the sum of (1) the amount calculated as
set forth in the formula above, setting the payor's income at the
income cap; and (2) such additional amount as the court may order
following consideration of 19 enumerated factors. The guidelines also
include protections for low income individuals.
In defining the income cap, the Legislature adopted the very same
language for an increase in the income cap on January 31st of 2012 and
every other January 31st thereafter as is contained in the CSSA. The
purpose was identical, namely, to make sure that the income cap kept
up with economic realities.
Section 111-I of the Social Services Law provides that the combined
parental income amount in the CSSA must be adjusted every two years by
"the product of the average annual percentage changes in the consumer
price index for all urban consumers (CPI-U) as published by the United
States Department of Labor Bureau of Labor Statistics for the prior
two-year period rounded to the nearest one thousand dollars."
Similarly, subdivision (5-a) of part B of section 236 of the Domestic
Relations Law provides that the income cap in the Temporary
Maintenance Guidelines must be adjusted every two years by "the
product of the average annual percentage changes in the consumer price
index for all urban consumers (CPI-U) as published by the United
States Department of Labor Bureau of Labor Statistics for the two-year
period rounded to the nearest one thousand dollars." As is the case
for calculation of the biennial "Cost of Living Adjustment," it would
be more appropriate in both the CSSA and Temporary Maintenance
Guidelines formulas, to utilize the "sum," rather than the "product"
of the average annual percentage changes in the CPI-U. See Family
Court Act § 413-a(2)(a); D.R.L. § 240-c(2)(a).
Use of the term "product" was most likely intended to refer to the
product of the combined parental income "cap" multiplied by the
combined total of the changes in the CPI-U during the preceding
two-year period, that is the total level of inflation during the
applicable period. However, read literally, the current language might
be read to require the change in the first year to be multiplied by
the change in the second year. Changes in the CPI-U have been modest
for the past few years - in the 1.5 - 2.1% range - thus not causing a
major disparity in the amount of the "cap." But if the CPI-U increases
at a rate of 3.5% or higher in future years, significant disparities
would emerge. An example for each formula will suffice.
CSSA Cap: Assuming that the annual rate of change in the CPI-U over a
two-year period is 3.5%, then using the product of the changes (as
under the current statute), 3.5% times 3.5%, yields 12.25%. 12.25% of
$141,000, the 2014 "CSSA cap," is $17,272, which, rounded to the
nearest $1,000, is $17,000. The "cap" would thus be $158,000 ($141,000
plus $17,000). In contrast, using the sum of the changes, as proposed
in this measure, 3.5% plus 3.5%, yields a 7% change; 7% of $141,000 is
$9,870, or $10,000 when rounded to the nearest $1,000. The new "cap"
would thus be $151,000 - a significant $7,000 difference between the
two methods of calculation.
Temporary Maintenance Cap: Assuming that the annual rate of change in
the CPI-U over a two-year period is 3.5%, then using the product of
the changes (as under the current statute), 3.5% times 3.5% yields
12.25%. 12.25% of $543,000, the 2014 "cap," is $66,518, which rounded
to the nearest $1,000 is $67,000. The "cap" would thus be $610,000
($543,000 plus $67,000). In contrast, using the sum of the changes, as
proposed in this measure, 3.5% plus 3.5% yields a 7% change; 7% of
$543,000 is $38,010, or $38,000 when rounded to the nearest $1,000.
The hew "cap" would thus be $581,000 - a significant $29,000
difference between the two methods of calculation.
This measure proposes use of the same terminology as in the COLA
calculation - that is, the sum of the average annual percentage
changes in the CPI-U for each of the two years multiplied by the
existing combined parental income "cap" and then rounded to the
nearest $1,000. This methodology will yield results reflecting the
total amount of inflation for each two-year period and will thus be
proportional to the inflation rate. In this way, the calculation of
child support in cases where the combined parental income exceeds the
"cap" and calculation of Temporary Maintenance where the payor's
annual income exceeds the "cap" will more fairly and accurately
fulfill the legislative intent of the Child Support Standards Act and
the Temporary Maintenance Guidelines. In the case, of the Child
Support Standards Act, that is, to establish "a method for determining
an adequate level of support in actions involving children."
(Governor's Program Bill Memo, L. 1989, c. 567, p. 1). In the case of
the Temporary Maintenance Guidelines, that is "to provide consistency
and predictability for temporary maintenance awards similar to the
child support guidelines in the Child Support Standards Act." (Bill
Memo to 2010 Assembly Bill 10984-B)
This measure, which would have no fiscal impact upon the State, would
take effect 90 days after it shall have become a law.
None. New proposal.