Looking for “Fair”?

It’s not always found in the law!

During a recent mediation Craig said it did not seem “fair” that he had to pay child support when the children were going to be with him half the time. Shelly’s view was that if she was entitled to it under “the law”, he should pay it. This led to a discussion about “fair” and “the law”.

Let’s look at how the law works in the area of child support. First, the law says that the non-custodial parent pays child support to the custodial parent according to a percentage based on the number of children. If you have two children the non-custodial parent pays 25% of his or her income to the custodial parent.

The custodial parent is determined by who has the children more each week or month. If the children spend more time with one parent he or she is considered the custodial parent and receives child support from the other parent. But what if the children spend exactly the same amount of time with each parent? In that instance the law says that the parent with the lower income is the custodial parent.

Let’s see how this works. Assume that all required deductions are made for FICA and the income of each parent is the income used to determine child support. If Craig makes $60,000 a year he would owe $15,000 per year in child support. If Shelly makes $56,000 per year she would owe $14,000 per year in child support.

In this case, Shelly would be considered the custodial parent according to the law so Craig would pay Shelly $15,000 per year! There is no “proportional offset” of the child support because the children are with each parent half the time.
This means that Shelly now will have an income of $71,000 per year, while Craig’s income has been reduced to $45,000. Given that child support is paid in “after-tax” dollars, Craig has even less disposable income. But the children are with him half the time! Is that fair?

Most people would not think so. But that is the law in New York! And if Shelly had a lawyer he/she would certainly tell her not to accept any less since this is probably what would happen if the matter were decided by a Judge. So much for the law being fair.

Worse, what do you think Craig is going to do? Possibly fight for custody. Since child support is an “all or nothing” proposition, he may feel he has no other choice. In fact, the only thing that might stop him is the impact such a court battle would have on the children!

So what happened? Shelly agreed with Craig that such a result was not fair and they worked out an arrangement where Craig did pay Shelly some child support, because she did have less income and was going to continue to assume responsibility of buying clothes and school supplies for the children. It made more sense to the two of them to come up with an amount that reflected the actual expense Shelly would incur in making these purchases and having Craig give her the money to manage it.

Was it legal? Yes. Few if any Judges would object to a couple reaching such an agreement. Was it “fair”? Craig and Shelly thought so. But did it follow the law? Technically, it did not, but fortunately for the children, Craig and Shelly decided to make a rationale decision for themselves and not allow “the law” to be applied when it would not produce a “fair’ result.

How did they do this? Working together in mediation they determined that their goal was to provide a similar lifestyle for their children no matter which home the children were in and then found a “fair” way to accomplish that goal.

Feel free to ask any questions, to comment, or to request more information in the Comments Box below. Also, please forward this blog to anyone you know who would be interested in its topic.