I have previously written about the court’s ability to consider not only the income one or both parties actually reported but the income as should have been reported. What is not commonly known is that the court, whether Supreme Court or Family Court, can vary from the statutory percentages, by either increasing or reducing child support amounts.
In Irkho v. Irkho, 66 A.D.3d 682 (2d Dept. 2009), the Appellate Division held that Family Court properly denied the father’s objections to the order of the Support Magistrate, which departed from the numerical guidelines of the Child Support Standards Act and directed him to pay 50% of the child’s regular monthly expenses. The Appellate Division held that a hearing court is not bound to apply the statutory percentage established in Family Court Act 413(1)(c), but may determine the child support obligation through the application of the percentage set forth in Family Court Act 413(1)(c), the factors delineated in Family Court Act 413(1)(f), or a combination of both (see Cassano v. Cassano, 85 N.Y.2d 649 (1995)). Family Court providently exercised its discretion in departing from the prescribed percentage.
The above is fairly uncommon situation since in vast majority of the cases the courts will apply the CSSA. It is unfortunate that the Appellate Division did not discuss the facts of the case in detail. Whatever the circumstances were that resulted in the court’s decision may applicable in other cases. If the child’s monthly expenses exceed the amount that the father would be obligated under the CSSA, family law lawyers would certainly appreciate knowing under what circumstances their clients may receive or be obligated to pay child support in excess of the CSSA amounts.