What if the CSSA Doesn't Work for Us?
How does the Child Support Standards Act (“CSSA”) work in mediation? First, you will need to discuss whether or not you are going to apply or opt out of the CSSA.
To do that, you need to know what the child support figure would be if the statute were applied. Your mediator can explain the computation based upon the combined income of you and your spouse.
What income figure should be used?
If one of you is unemployed or underemployed by choice, or the income reported on your income tax return is not representative of the true income earned, the parties may choose to impute an income for the under-earning party.
If one of you is earning much more this year than last year, the CSSA mandates you use the income on your most recent income tax return, but that might not make sense if that income is no longer what is actually being earned. You can choose to apply the CSSA to your current income.
In both cases, you are opting out of CSSA.
How much income should be used?
The statute provides for applying the percentages to $141,000 of combined parental income, but due to the higher cost of living in Westchester, the child support percentages are typically applied to combined parental income of approximately $350,000. The parties may then choose to do the same, or based upon their circumstances, choose to apply the percentages to any other combined income to which they agree. In effect, they opt out of the CSSA because only a court can apply income above the cap.
Joint Physical Custody
The statute does not address a situation where there is no “non-custodial parent.” While case law interpreting the statute provides for the payment of child support by whomever earns more to whomever earns less, in joint physical custody cases that may not make much sense to the parties, especially if the difference in income is not that great.
Instead, they might want to consider a different arrangement where each parent is responsible for the expenses of their individual household, while sharing in direct expenses such as clothing, extracurricular activities, etc.
Or the parties may share direct expenses of the children pro rata to their income, and the party who earns more will pay some amount of support to the party who earns less, so that each can maintain similar households for the children.
In any situation where you decide to opt out of the CSSA, you will need to provide the reasons why you are doing so, to ensure that the waiver of the statute is being made knowingly, and so that your agreement will pass muster with the courts when you seek a divorce.
In mediation, a couple can make the CSSA work for them in a way that best meets the needs of their family, whether that is applying it or opting out.
Will the CSSA work for your family, or not?