Setting Initial Child Support Amount
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. The most common method of child support payment is cash payment in monthly, bimonthly, or weekly installments, which will depend on when the person gets paid.
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 $240,000 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.
The court may 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. . . .” 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.
North Carolina Child Support 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, health insurance costs, and extraordinary medical expenses attributable to the child. These calculations are made on 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 overnight 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.
Also, the Guidelines themselves provide that they do not apply when the parties’ combined monthly income exceeds $240,000 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.
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.
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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. Wake County 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. In addition, recent pay stubs reflecting the last two (2) months should 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 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.
Modification of Child Support
Changed circumstances may make the amount of child support go up or down. There are 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 in a separation agreement or in a court order. If child support is stated 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. 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.
Child Support Worksheet
Child support worksheets were designed to help determine how much child support one party should pay to another. 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 problem of voluntary unemployment or underemployment by occasionally allowing the inclusion of assigned income. Exceptions to this rule of imputing 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.
Enforcement of Child Support
When child support is agreed to in a separation agreement, or ordered by the court, and then not paid, there are a number of remedies to secure enforcement of the agreement or court order. If the child support is set up in a separation agreement, the basic remedy is suit for breach of the contract, which would include a claim for the arrearages. If child support is payable under a court order, the order is enforceable through the contempt powers of the court. A number of remedies are available for the enforcement of child support including seizure of real estate and personal property, orders that bonds be posted, assignment of wages, garnishment, arrest, and interception of income tax refunds.
There are always many questions regarding how child support works. Child support is not taxed to the recipient, nor can it be claimed as a tax deduction by the payor. However, alimony is deductible to the payor and includable as taxable income to the payee.
Also, if an ex-spouse who is paying child support has another child with his or her new spouse, the amount of child support being paid should not be affected. Lastly, please be advised that child support obligations are not discharged in bankruptcy court.