Despite objections that it is institutionalizing “double dipping”, New York’s highest court has given its assent to a manifestly unfair practice in family court of counting the same income stream twice in calculating support payments. The issue arises because New York, alone among the 50 states, treats enhanced income attributable to a professional license as community property and awards a share of it to the other spouse. The court may then proceed to assess child support payments on top of that against a non-custodial spouse. In doing so, however, courts have been basing child support formulas on the full professional income stream, even though part of that stream is no longer available, having been awarded to the other spouse. “The immediate effect of the [new Court of Appeals] ruling is that an Albany, N.Y., physician must pay his ex-wife two-thirds of his net income, about $91,000 a year, since his child support calculation ignores the fact that she is already drawing from the value of his medical license.” According to the majority of justices, this result simply follows from the phrasing of the state’s child support statute, and the legislature in Albany is free to change it if it is unfair. Dissenting Justices Robert Smith and Susan Phillips Read, on the other hand, point out that the statute in question “expressly permits departure from its formula to avoid an ‘unjust or inappropriate’ result.” (John Caher, “N.Y. Panel Upholds Disputed Child Support Formula”, New York Law Journal, Jun. 14; Holterman v. Holterman opinion, Jun. 10).

Filed under: family law