Child Support Disputes: What You Should Know

Child Support in North Carolina is often settled by the parents of the child by agreement. Generally parents come to agreement based upon the North Carolina child support guidelines. The guidelines provide detailed instructions for those families with incomes of less than $300,000 per year. Our firm provides a child support calculator based on the guidelines to help families determine child support amounts. Once calculated, you have the option to print your calculations as a PDF form that may be filed in court. In recent years, the payment of child support and the calculating of child support have changed. In rare cases, grandparents may be required to pay child support. Support is calculated based upon each parent’s income which may include IRAs and stock options. When child support is not paid as ordered the court has the authority to hold a child support obligor in contempt for nonpayment. The contempt statutes provide insight into what is considered contempt in North Carolina. If a courtroom appears to be in your future be sure to read Navigating Basic Court Procedure in North Carolina. If you are trying to collect child support, contact your local Child Support Enforcement Agency . For referrals to lawyers in North Carolina and other states, or for Child Support Enforcement Agency information, visit our family law links page. Child support can be settled out of court in the form of a separation agreement. A number of provisions in Chapter 50 of the North Carolina General Statutes govern child support. These statutes, and a few others, designate who may bring an action for child support; who can be held responsible for its payment; and how soon a child support case should be heard. As you already know by now from this website, a child support action may be filed as a separate civil action in North Carolina, or it may be joined with an action for annulment, absolute divorce, divorce from bed and board, or alimony without divorce. As you also have learned, the issue of child support may be settled by private agreement, thus avoiding the necessity of going to court unless one party needs the assistance of the court in enforcing such an agreement. An action for child support (either an initial declaration or modification) must be brought in either the county where the parent or the child resides or in the county where the child is physically present. Child support may take various forms including cash payments and property transfers. The most common method of child support payment, of course, is cash payment in monthly, or sometimes weekly, installments. Child support is paid to the custodial parent by the non-custodial parent or to “any other proper person, agency, organization or institution, or to he court for the benefit of the child.” Either the party having custody or, upon motion and under a court order, the clerk of court may receive the payments. If the court clerk receives the payments, they are then forwarded to the intended recipient. A complaint, counterclaim, or motion in the cause for child support should contain certain information: the identity of the parties and their residences, the identity of the minors involved, their dates of birth and residences, the existing custody situation, and, if custody is also being sought, the jurisdictional facts required by the relevant provisions of the UCCJA. Additional allegations could address the non-custodial parent’s ability to provide support, the custodial parent’s need for the marital residence in order to house the child, and the need for an award of legal fees. The custodial parent may have a claim for attorney’s fees if the fees are reasonable, the action is for child support only, the party is acting in good faith and has insufficient funds to pay the lawsuit’s expenses, and the party ordered to provide support has refused to provide support which is adequate under the circumstances existing at the time the suit was instituted. In evaluating whether the non-custodial parent has refused to provide sufficient support, the court considers the reasonable living expenses of the parent with custody, the child’s past and present expenses, and, if applicable, the amount of support the non-custodial parent has provided. In order for the court to evaluate the reasonableness of attorney’s fees, there must be evidence as to “the nature and scope of the legal services, the skill and time required, and the relationship between the fees customary in such a case and those requested.” Local court rules address whether one or both parties must complete a financial affidavit, setting forth the child’s monthly needs and expenses. In some counties, for example, such an affidavit must be filed several days in advance of the court date as well as served on the opposing party. In Wake County, the local court rule that became effective on January 2, 1996, requires a plaintiff to file a financial affidavit, on the form dictated by the local rule, at the time the complaint is filed. It is often helpful to have the documents, such as checkbook registers and receipts, available in court to provide verification of the figures inserted on your financial affidavit. Some counties require, in addition, that recent paystubs be attached to the financial affidavit in order to verify income assertions. The financial affidavit requires the allocation of the needs and expenses between the custodial parent and the child or children. A fixed percentage may be used to apportion the expenses unless there is evidence that such a division is unreasonable. However, when the custodial parent remarries or lives with other third parties, he or she cannot total the expenses for everyone present in the home and then allocate a pro rata share to the child. Further, the present reasonable expenses of each parent only take into account actual or already planned expenditures. Any expenses that have not yet been paid and not concretely planned for will be viewed with suspicion. In other words, do not inflate the expense items on your affidavit. Although most parties agree on child support outside of court, either party may request a hearing on child support when they cannot agree on the amount, when the parties’ combined adjusted gross income is more than $200,000 per year, or when one party is armed with other facts suggesting that deviation from the Guidelines is appropriate. The evidence at such a hearing must address the parties’ income and expenses, the child’s reasonable needs, each parent’s relative ability to pay support, and the bases for requesting variance from the Guidelines if there is a motion for deviation. In its order, the court is required to make findings relating to the reasonable needs of the child and the ability of the parents to pay support. In addition, if the court varies from the amount prescribed by the Guidelines, the court must make findings justifying the variance. If a party wishes a deviation from the Guidelines, there needs to be evidence supporting this variance. You have some creativity available here and should not neglect to consider the standard of living of the people involved, unusual necessary expenses, support that takes an untraditional form, special educational provisions for the child, unusual visitation scheduling, and other demonstrable factors impacting on the amount owed. Deviation may be ordered in an amount higher than the guideline amount of child support. Upward deviation typically occurs in families of wealth and/or in families where the children have unusual needs. Deviation may also be ordered in an amount lower than the guideline amount. Downward deviation typically occurs when either the custodial parent does not require the full guideline amount to meet the child’s reasonable needs or when the non-custodial parent does not have the ability to pay the amount dictated by application of the straight Guidelines. Absent an exception, child support terminates in North Carolina when a child reaches the age of eighteen. The two most important exceptions to this rule, for all orders entered on or after October 1, 1993, are that: 1) when a child is otherwise emancipated prior to age 18, payments terminate at that time, and 2) “[i]f the child is still in primary or secondary school when the child reaches 18, support payments shall continue until the child graduates, otherwise ceases to attend school on a regular basis, fails to make satisfactory academic progress towards graduation, or reaches age 20, whichever comes first, unless the court in its discretion orders that payments cease at age 18 or prior to high school graduation.” The other statutory exception to the rule against post-minority support applies to a child who is incapable of self-support. For such a child, the obligation of child support continues until the child is no longer physically or mentally incapable of supporting him- or herself. As you have read elsewhere on this website, child support may either be agreed upon by the parties through a separation agreement or one party may request that the district court make the award. Significantly, because a separation agreement is a contract, the parties may agree for a parent to assume child support obligations greater than those which the law imposes. Parties may wish for example to use a separation agreement to provide for private schooling, college or post-high school education, summer camp, life insurance for the minor’s benefit in the event of the death of the parent paying child support, cost of living increases, extension of support beyond the age of eighteen, and transfer of the dependency exemption. With the exception of pre-college schooling and extracurricular expenses, these are all items that the North Carolina court, under its own authority, cannot order. If a separation agreement containing such “extra” items is eventually incorporated into a consent order, the court then has the power to enforce contract provisions the court itself could not mandate in the first instance. But because North Carolina law cannot require the parent paying child support to obligate him- or herself to pay for college of to purchase life insurance to secure child support payments, many parents will refuse to enter into separation agreements containing such provisions. No matter what the child support provisions in a separation agreement say, they are not fixed in stone. The court has both inherent and statutory authority to protect a minor child’s interest. Thus, no contract can deprive the court of its inherent supervisory power, during a child’s minority, to enforce or modify an agreed-upon support provision. Although child support provisions in a private contract are not directly modifiable by the court, absent the parties’ consent, a court having proper jurisdiction is free at all times during the child’s minority to enter an order of child support and/or to modify an existing order based on a showing of changed circumstances. The fact that child support is provided for in an agreement, then, does not mean that the court cannot order a different amount of support to be paid. Also, if there is a pre-existing court order for chid support, a showing of changed circumstances can convince the court to alter the amount of support. Changed circumstances may make the amount of child support go up or down. There are many, many ways in which this can happen. If the child has increased needs, even if the parties’ incomes have not changed, a judge may decide to order additional child support. If the payor’s income has declined through no fault of his own, even if the child’s needs have not declined, a judge may decide to reduce the amount of child support. If both parents’ incomes have increased, child support payments might also be increased. If a parent or child changes the place of residence, this too can affect the amount of support. Our courts apply two different standards when determining whether to modify child support, depending on whether the original award was embodied in a separation agreement or in a court order. If child support is embodied in a separation agreement, the standard for “modification” requires only that the moving party must show the amount of support necessary to meet the reasonable needs of the child at the time of the hearing. The amount which the parties have agreed on is presumed to be reasonable, but it only constitutes some evidence of the appropriate level of support. In other words, the trial court can disregard a prior settlement over the amount of child support, even if the parties deemed the amount to be fair. The previously agreed upon level of support is but one factor to be considered at a hearing. By contrast, if a court order for child support is to be modified, the party must show “changed circumstances.” This change must be both “substantial and material.” This standard for modification puts a heightened burden on the party seeking to change the amount of support. The court only considers changes since the entry of the most recent order. Its examination would focus on the reasonable needs of the child, each parent’s relative ability to pay, and all the other financial factors taken into account under the Guidelines. The party wishing to freeze child support as much as possible should, therefore, memorialize any agreement between the parties in a consent order. The current North Carolina Child Support Guidelines became effective on October 1, 2006. The Guidelines must be reviewed, at a minimum, every three years. These Guidelines recognize that child support is a shared obligation. The parties’ shared monetary obligation is computed by considering both parents’ gross income as though the combined income dictates certain child-rearing costs, taking into account responsibility for other children, work-related daycare, and extraordinary medical expenses attributable to the child. These calculations are made are pre-printed worksheets, available in three forms as described below. The Guidelines set child support in all three potential custody arrangements — sole, joint and split. “Sole” custody calculations occur under Worksheet A, which applies when the non-custodial parent has the child for fewer than 123 overnights during the year. To fall under the Guidelines definition of “joint” custody and to be eligible for a support calculation under Worksheet B, the secondary parent must have the child overnighting with that parent at least 123 nights each year. In general, the calculation of the secondary parent’s child support obligation under Worksheet B will yield a lower child support amount than use of Worksheet A. “Split” custody, which uses Worksheet C, refers to families with more than one child, where at least one child lives with one parent full-time and the other child or children live with the other parent. Either party may request the court to deviate from the Guideline amount. The request may be for an upward or downward deviation. Unless requested in the original pleadings, such a request must be by written notice at least ten days in advance of the hearing on deviation. If such a request is made, the court is required to hold a hearing and examine evidence relating to the reasonable needs of the child and the abilities of each of the parties to provide the needed support. The court may then deviate from the Guidelines if it “finds by greater weight of the evidence that the application of the guidelines would not meet or would exceed the reasonable needs of the child considering the relative ability of each parent to provide support or would be otherwise unjust or inappropriate. . . .” Also, the Guidelines themselves provide that they do not apply when the parties’ combined monthly income exceeds $200,000 per year. In such cases, the parties either need to negotiate an amount of support satisfactory to both parties; or the parties need to ask the court to decide whether a deviation above the maximum guideline amount is justified under the circumstances. As mentioned above, the Guidelines come with three worksheets keyed to the three possible custodial arrangements. The worksheets are designed to be easy to understand and to use. However, it may be helpful to study the introductory text in the Guidelines prior to selecting and filling out the appropriate worksheet. A very basic overview is provided in this section; it is not intended to be a step-by-step guide to completing the worksheet, as the procedure will vary in every case. The most obvious issue that must be resolved before the child support obligation is calculated is which worksheet to use. Remember that Worksheet A is used if one parent is to have sole custody of the child (or children) with the other parent’s visitation totaling less than 123 nights per year. Worksheet B is appropriate when the non-custodial parent spends 123 overnights or more with the child (or children). Finally, you should use Worksheet C if each of you has sole custody of at least one child of your marriage. There are several variables taken into account on the worksheets, one of them being gross income. The definition of gross income in the Guidelines is quite broad and certain calculations must be made if self-employment or the operation of a business is involved. Two special points should be noted in regard to statements about actual income. First, the Guidelines attempt to fix the appropriate amount of support for a minor child by occasionally allowing the inclusion of imputed income for those parents who are either voluntarily unemployed or underemployed, where imputation is called for. Exceptions to this rule about imputation of income exist for those parents who are caring for a child under three years old and who owe the child a legal duty of care, as well as for those who are physically or mentally incapacitated. Second, income must be verified; and sanctions are available to the other party should one party fail to provide the appropriate documentation. The proper child support award is determined by evaluating the parties’ income at the time the award is actually made. However, again it is important to recall that potential income can be a factor as well. As noted previously, four adjustments can impact on the amount of child support owed by a parent, namely: preexisting child support obligations and responsibility for other children, payments for health insurance premiums, work-related child care costs, and extraordinary expenses for a child’s medical bills, education, transportation and the like. The deduction from gross income for preexisting obligations refers to the amount an individual is bound to pay pursuant to an existing court order or separation agreement. The deduction for responsibility for other children refers to the money paid to support other minor children from either the current marriage or a previous one. The health insurance deduction takes into account the employee’s cost to insure the minor child. Work-related child care costs are deducted at a rate of only 75%, thus taking into account the 25% federal tax credit for child care. “Work-related” daycare costs include not only those costs related to the parent’s working but also to the parent’s looking for work. Finally, extraordinary expenses encompass a child’s out of the ordinary medical, educational, and transportation expenses, whether permanent or temporary. If the expenses are short-term, this should be noted on both the worksheet and within any court order. Child support is not taxed to the recipient, nor can it be claimed as a tax deduction by the payor. Internal Revenue Code Section 71 provides that alimony is deductible to the payor and includable as taxable income to the payee. As noted in Internal Revenue Code section 71(c), however, child support now includes amounts specifically designated as such as well as payments, which although not denominated as child support, are reduced upon the happening of a contingency relating to the child or decreased at a time clearly associated with such a contingency. For example, if payments designated as “alimony” will be reduced or terminated upon a contingency relating to the child (such as the child’s turning 18), the Internal Revenue Service will view those portions of the “alimony” payments as non-taxable, non-deductible child support. Once you have been awarded child support, your work or your attorney’s work is not over. The court often requests that the child support order be drafted by the prevailing party. This task can be treacherous for the unwary. The state’s appellate courts have overturned child support orders due to their lack of specificity. More particularly, the court’s conclusions of law must be based on factual findings indicating that the court took “due regard” of the estates, earnings, conditions, accustomed standard of living of the child and the parties, the child care and homemaker contributions of each party, and other facts of the particular case. In addition, should the court deviate from the Guidelines, findings must be made as to the factors supporting deviation from the presumptive amount. Even after you have your child support embodied in a separation agreement or court order, you may find that it is not paid on time or in the full amount. Although this website is geared toward civil practice, there are criminal remedies that might be available to you for collecting child support. One of these remedies is found in North Carolina General Statutes section 14-322 which protects neglected and abandoned children. Under this criminal statute, if a parent willfully neglects or refuses to provide adequate support for his or her biological or adopted child, that parent is guilty of a misdemeanor and may be fined up to $500, imprisoned up to six months, or both. The parent may also be required to pay child support to the abandoned minor. Protection for illegitimate children is available through North Carolina General Statutes section 49-2, which also makes neglect and failure to provide support a misdemeanor. Title IV-D of the Social Security Act, 42 U.S.C. sections 651-667, created a federal child support enforcement program which mandates that every state adopt a plan meeting certain standards for the collection of child support. One of the program’s goals is to secure reimbursement, from the non-custodial parent, for public assistance disbursed through Aid to Families with Dependent Children (“AFDC”). In compliance with federal law, North Carolina has instituted its own child support enforcement program under our Department of Human Resources (“DHR”). The relevant statutory provisions are found in Chapter 110 of the North Carolina General Statutes. Local units operating under the auspices of DHR, generally found within the county department of social services, bring child support actions primarily for AFDC recipients. However, those not on AFDC may get the same help upon application and the payment of a nominal application fee. Although the local DHR unit may charge you certain other costs as well as its legal fees and recover the amount out of the support payments collected, this remedy may provide needed assistance to you if you cannot afford to retain a private attorney to represent you in seeking or collecting child support payments. A possible disadvantage to using the public Child Support Enforcement Agency is that the bureaucracy is overburdened and cases may move very slowly. Another potential avenue for relief with child support arrearages exists under the reciprocal enforcement of support statutes among the various states. North Carolina has recently enacted a new statutory remedy to provide for the interstate enforcement of child support obligations, called the Uniform Interstate Family Support Act, Chapter 52C of the North Carolina General Statutes (“UIFSA”). UIFSA, which went into effect in North Carolina as of January 1, 1996, has been enacted in about twenty-six states. A pending bill in Congress would require its enactment in all the states. UIFSA, like its predecessor (“URESA” or the Uniform Reciprocal Enforcement of Support Act), provides for the establishment, enforcement and modification of out-of-state support orders. Unlike URESA, a custodial parent (the “obligee”) can establish a support order in her own home state rather than just in the state where the person owing the duty of support resides. Except for extradition proceedings under these Acts, the interstate actions are civil in nature and not criminal. One of the principal problems with the prior Act was that it permitted multiple, inconsistent child support orders affecting one family to co-exist in different states; and it also permitted the state where the obligor lived to modify an order issued in another state. Under UIFSA, these problems will be curtailed. UIFSA gives priority to one order. It requires the recognition and enforcement of that primary order; and it prohibits other states from modifying an existing primary order in situations where the issuing state continues to have exclusive jurisdiction. In child support cases, a court retains continuing exclusive jurisdiction pursuant to UIFSA over its support order as long as that state remains the residence of the obligor, the obligee or the child, or until each party files written consent with the issuing state authorizing the court of another state to assume continuing exclusive jurisdiction in that other state. Where there may already be more than one child support order, and where the states each have exclusive jurisdiction by reason of a party’s residence, then the court presiding over a UIFSA proceeding is required to recognize the support order that was issued by the court in the child’s current home state. Where none of the courts issuing co-existing orders has exclusive jurisdiction, UIFSA does not require recognition of any of the prior orders except with respect to unpaid vested support arrearages. A North Carolina court is required to follow the UIFSA rules even in cases in which the other state has not yet adopted the new Act. The paperwork needed for initiating a URESA/UIFSA action must substantially conform with the pleadings approved by Congress for IV-D cases. The court must have personal jurisdiction over a non-resident defendant in order to make valid rulings with regard to child support. UIFSA creates a number of grounds for so-called “long arm” jurisdiction over a non-resident. Provided one of these grounds applies, and provided the exercise of jurisdiction over the defendant is consistent with constitutional due process, the UIFSA child support matter may proceed. North Carolina courts can exercise personal jurisdiction over non-residents pursuant to UIFSA if any of the following applies: (1) the non-resident was personally served with process in North Carolina; (2) the non-resident submits to jurisdiction here by consent, a general appearance, or filing a responsive pleading waiving the issue of lack of personal jurisdiction; (3) the non-resident resided at one time in North Carolina with the child; (4) the non-resident resided here at one time and provided prenatal expenses or support for the child; (5) the child resides here as a result of acts or directives of the non-resident defendant; (6) the non-resident engaged in an act of sexual intercourse in North Carolina with the child’s other parent, and the child may have been conceived as a result of that act; (7) the non-resident has asserted paternity in the paternity registry maintained in this state; or (8) there is some other basis for the exercise of personal jurisdiction consistent with constitutional principles.

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Child Support: The Details