Enhanced Earnings, Child Support and Equitable Distribution Payments
By
Law Office of Alexander Korotkin, Esq.
If at the conclusion of the divorce action a party is to receive a stream of payments to pay that party’s equitable distribution award, does that money need to be included in the child support calculations? In Holterman v. Holterman, 3 N.Y.3d 1 (2004), the husband argued that the payment of $21,288 per year, the annual installment payment of his wife’s distributive award of her share of enhanced earnings from his medical license, should be deducted from the computation of his income in determining his child support obligation under the CSSA and, concomitantly, that amount should be included as income attributable to wife. He claimed that the failure of the lower courts below to perform such reassignment of income results in “double-dipping” from the same income stream–i.e., awarding both child support and equitable distribution of his future enhanced earnings from the same income source, his salary as a physician. The Court of Appeals disagreed with the husband and held that his proposed reallocation formula, or any formula that required a deduction of a distributive award paid over a period of years from the licensed spouse’s income for purposes of calculating child support, is impermissible under the CSSA. The Court ruled that the CSSA does not provide for the deduction of distributive awards from income, whether based on enhanced earning capacity due to a professional license or otherwise. Nor does the CSSA authorize the inclusion of a distributive award as income to the parent receiving the award. This lack of inclusion in either the list of permissible statutory deductions or the definition of income is understandable because distributive awards “reflect, not income, but a property distribution” of the marital assets, regardless of whether such assets are being paid as an income stream.
