Legal Question in Family Law in New York

Re: Sale of Home

The applicable child support percentages are 17% for one child, 25% for two and 29% for three. One option to avoid being taken to court by your ex is to discuss an upward modifaction of child support with her.

This could take the form of a lump sum payment or increased monthly payments that are agreeable to both of you.

Since you mentioned retirement, are you planning on putting some of the money from the sale into a retirement account and using some to buy another residence?

You should discuss the financial consequences of retirement with your accountant and determine how much you will need to maintain your living standards. Then you will have a point to work from in any agreement with your ex-wife. Remember, to commit any such agreement to writing preferably with the assistance of legal counsel.

Rather than reacting to what your ex-wife may or may not do, it is always better to be proactive and resolve potential issues sooner rather than later.

Re: Sale of Home

Whether the income or profit from a "converted" asset, previously disclosed, is "CSSA" income or profit, after reduction for taxes, costs "roll over," and forth, (above the $80,000.00), upon which regular child support will be based, cannot be determined w/o complete info and assessment of your case.

However, Child Support is usually based upon "set" percentages. To wit: 29% of your "gross" income (minus apx 10%, for 3 Children, as would be reflected in your most recent tax returns, up to $80,000.00. Plus a pro rata share of out of pocket or uncovered, health care costs, and "Add Ons."

"Add Ons," may include but are not limited to, your share of costs, for school tuition, transportation, uniforms, summer camp, etc..

Whether the Court applies the percentage formula on parental income above $80,000.00, is also supposed to depend upon the particular circumstances of the case.

"Particular" circumstances or "needs" of the child/ren, usually refers to the standard of living the child would have enjoyed, but for the divorce; disparity in parental income, lifestyle, etc.. A Non Custodial Parent's Non monetary or personal contributions to the child/ren's life, standard of living and well being.

Suggest: Talk to your accountant and find out how the property will be taxed; and decide whether the anticipated income or "profit" is "investment" income or is going to be used for an "exchange." Provided your monetary contributiion to your children's life, is more than adequate and sufficient, it is possible, you will not suffer an unreasonable penalty.

Good luck,

Phroska L. McAlister,ESQ

Re: Sale of Home

You applicable child support percentages are 17% for one child, 25% and 29% for two and three children, respectively.

Even if the capital gain was considered for child support purposes, it could be explained away as you would not experience this type of income regularly.

Dan Clement