A separation agreement can only be modified with the consent of all parties if it has not become part of a court order. Consent by the parties can be made “in advance” by including a provision in the agreement allowing changes in specific situations. If the parties cannot agree to the existence of such specific circumstances, then the party seeking modification can apply for a court order stating that new circumstances necessitate a change in the agreement.

In North Carolina, it is not a violation of public policy to state in a separation agreement that it cannot be modified, except with regard to children and child support.  Once a separation agreement becomes part of a court decree, it is no longer a contract and different rules will apply, as it relates to a modification. In North Carolina, a modification can only be made upon a finding of a substantial change of circumstances. A North Carolina court will not enforce a clause that makes a separation agreement un-modifiable if it has become part of a court decree.

Generally, if a separation agreement is part of a court decree, the court will apply statutory law to override terms of the agreement. For instance, parties can agree for alimony to continue after the recipient of alimony remarries, yet a statute prohibits such. However, while a parent is generally not required to support a child once he reaches adulthood (age 18), courts will enforce an agreement that is part of a court order in which a parent agrees to support a child after 18 (i.e. college graduation).

Modifying Support Agreements

Parents can provide for child support in a separation agreement regardless of whether such agreement becomes part of a court order. Nevertheless, while parents generally are free to enter into contracts, provisions that concern a child are not allowed to  prevent the state from (1) acting in a child’s best interests; or (2) providing for a child’s welfare.  But the law acknowledges that parents are often the best judges of their children’s needs. Therefore, the courts will give weight to parental agreements regarding child support.

Courts will not honor terms of a separation agreement that relieve a parent from supporting a child, or in which a parent promises not to seek child support in the future. An agreement not to seek visitation with a child will not justify enforcement of such a clause.

The court is also not willing to enforce an agreement in which a parent waives his/her right to future support of a child, in exchange for a lump-sum payment. The courts acknowledge that a child’s needs may change, thus they are unwilling to enforce such waivers. Generally, a court will enforce agreements specifying the amount of child support, so long as the judge is able to conclude that the amount is in line with the best interests of the child. Courts commonly will enforce such agreements even if the parties agree to greater support than required by the statutory guidelines.

Motions to Modify Child Support

After entering into a separation agreement, one of the parents may decide the child support amount is not sufficient. The parent seeking the modification can then bring a motion to modify the child support amount. The court will presume that the amount originally agreed to by the parents was just and reasonable. Therefore, if an agreement has failed to become part of a court decree, the parent seeking the modification must overcome that presumption. Additionally, the parent must show how much support is required for the child. Because the court was not involved in the original child support decision, the party only needs to show the amount necessary to meet the reasonable needs of a child, not a change of circumstances.

When a court rules on a motion to modify child support, the court has to compare the child’s needs at the time of the hearing with the amount the parents originally agreed upon. If a party seeking modification fails to overcome the presumption that the original amount was reasonable, then the court will order payment of the original amount. However, if the party seeking modification successfully rebuts the presumption, showing the agreed amount was unreasonable, then the judge will refer to the child support guidelines, deviating from the guidelines if appropriate.

Deviating from a state’s child support guidelines involves a four-step process: First, a court must determine the presumptive amount of support under the child support guidelines, which is based on the following factors:

  • Income of the parents;
  • Number of children from the relationship;
  • Number of overnights a child spends with a parent;
  • Child support obligations for other children;
  • Childcare costs; Healthcare costs;
  • Other extraordinary expenses.

Second, the court must examine need of a child and the parents’ ability to pay.  Third, the court must make a determination of whether the child support guidelines meet or exceed a child’s needs, or are otherwise unjust. Lastly, a court must make findings of fact that would allow an appellate court to review its decision, if one of the parents challenges the decision.

In order for a court to deviate from the guidelines, it must make findings regarding a child’s needs, as well as the estates, earnings, conditions, and living standards of the parties. An “estate” includes savings, real estate holdings, stocks and bonds, and other valuable property.  “Earnings” include wages, salaries, benefits, and investment income. Money that comes from illegal activities (i.e. gambling) may be taken into consideration by the court. Additionally, a parent who purposefully depresses his own income via continuing unemployment or works a low-paying job may have income imputed to him by the court. “Living Standards” involves a parent’s duty to provide to his children with the reasonable advantages considering the parent’s financial condition and position in society. Essentially, enough support should be provided for the children to live the same lifestyle, as if the family had remained intact.

A court can also take special circumstances into account in a case, such as fairness and the conduct of the parents. For instance, where a child support award would allow a child to maintain an extravagant lifestyle, but impose poverty upon a father, such an award would be considered unfair. If the parent seeking a modification successfully shows that the originally agreed support amount was not reasonable, the new amount will only apply to future child support. For a court to retroactively change a child support order, a parent must prove an emergency situation (involving parent or child) warrants the change.

If the parent obligated to pay support seeks a modification, and the court orders a lower amount than originally agreed, the other parent can sue to enforce the terms of the original contract. However, if the parent who is owed support seeks a modification and the court orders an amount less than the one agreed to previously by the parties, that parent cannot sue to enforce payment of the amount in the agreement. The Brind’ Amour cases illustrates this issue.

Brind’Amour

Rob and Kelle Brind’Amour married in 1996, had three children during the course of the marriage, and separated in 2003. Rob worked as a professional hockey player. Since Rob faced a possible lockout by NHL owners, the parties agreed that Rob would pay $15,000 per month in child support, or $2,500 per month from the time of a lockout until the season resumed. Such an agreement was not incorporated into a court order, and both Rob and Kelle later filed motions to establish child support. Kelle argued that Rob failed to pay for extracurricular activities for the children that were required by their agreement. In 2007, Rob was ordered to pay Kelle $9,147 per month in child support. Rob was also ordered to pay the healthcare expenses, extracurricular activity expenses, and educational expenses not covered by the agreement. Over 100 findings of fact were made by the lower court.

Rob was able to successfully rebut the presumption of the original agreement being just and reasonable by the temporary nature of the agreement (anticipated lock-out), and the conduct of the parents prior to signing the agreement. The children enjoyed extraordinary experiences and activities such as attendance at plays, musicals, museums, magic shows, as well as large homes, travel, and extravagant extracurricular activities.

The custody order specified that the day-to-day decisions would be made by the parent the children were with at the time. Both Rob and Kelle were not able to agree on the lifestyle they wanted for the children. Rob wanted the children to work hard and learn to be frugal, while Kelle had differing views. As compared to Kelle, while the children were in Rob’s care, their living expenses were much lower than when they were with Kelle.

If Rob were required to pay more support, Kelle would benefit more than it would serve the reasonable needs of the children, because of the time spent with each parent. The children spent 40 percent of their time with Rob and 60 percent with Kelle. Additionally, Kelle spent excessive money on a nanny, which included supplying her with a car – funds that were not necessary when the children were with Rob, since he did not need a nanny.

In a single month, Kelle spent $1,130.37 on entertainment and recreation for the children. Nevertheless, she was unable to provide evidence that distinguished between parties for the children, and parties Kelle threw for her friends. Expenditures of over $1,000 a month for children’s entertainment is excessive. A more reasonable amount is $355 per month, allowing for $500 for each child’s birthday party, $300 for each child’s end-of-school pool party, and $60 per week while the children are with their mother. It was reasonable and in the best interest of the children for Rob to pay $9,147 per month in child support. Kelle appealed, claiming that the lower court made various errors, and that its order was not supported by adequate findings.

The appeals court agreed with the trial court, finding that the trial court did not abuse its discretion and it had thoroughly reviewed the evidence. Kelle argued that the lower court deprived her children of advantages they would have otherwise received. However, the court appeals acknowledged that the children would still be able to attend private school along with a host of other advantages. Additionally, the court noted that a number of the expenses that Kelle claimed were either unrelated to the needs of the children or merely excessive. The appeals court also agreed with the lower court that the expenses for the nanny (salary and car) were unnecessary since Kelle did not work outside of the home.

Motions to Modify Child Support Based on Court Decrees

A court has the power to act in the best interests of a child if a child-support agreement becomes part of a court decree. A parent can file a motion seeking a modification of child support. However, when child support has been set by court decree, and not by agreement of the parties, the parent seeking modification faces a higher burden, and the court faces a different issue. The parent seeking modification must show a substantial change of circumstances since the last court order.

A change of circumstances relates to guidelines, living conditions, estates, and other factors discussed above. An unintended drop in income for one parent may be a sufficient showing of changed circumstances, supporting a decrease in child support, even absent evidence of a change in a child’s needs. However, an increase in a parent’s expenses will not necessarily constitute a change in circumstances. For instance, in the 2005 Saunders case, the court found that the presence of a newborn in the father’s home did not constitute a change of circumstances justifying a reduction of his support obligation to a previous child. Additionally, an increase in a parent’s income, on its own, will not justify an increase in child support obligations. The following case illustrates such:

Case Study:

Lewis and Sarah Thomas married in 1974, and had three children. The couple separated in 1986 and Lewis was ordered to pay Sarah child support. Lewis was obligated to pay Sarah a total of $1,300 per month – $500 for each of the two older children and $300 for the youngest child. Lewis complied with the order. In 1996, the couple’s oldest child graduated high school and turned 18. Lewis then reduced his payment to $800 per month, and Sarah filed a motion to modify the support order to increase the amount of support.

The trial court found a substantial change in circumstances and awarded Sarah $1,766 per month. Specifically, Lewis’ income increased from $150,000 to over $270,000 and his net worth increased to $3.5 million — both factors in the court’s decision. In computing Lewis’ support obligations, the most recent child support guidelines were not used. It was determined that the needs of the children had increased since 1986. The court of appeals departed from the lower court, and found that a child reaching age 18 and graduating from high school is insufficient to justify an increase in child support.

Even though Lewis’ support obligation was not computed using the most recent child support guidelines, this was insufficient to qualify as a substantial change in circumstances. Additionally, the finding that the minor children’s needs increased since the original entry of child support was also insufficient to show a substantial change in circumstances because there was no evidence presented relating to the reasonable needs of the children. It is well established that a parent’s request for increased support is improper when based solely on the increase in income for the parent obligated to pay support.

Supporting Adult Children

Parents are free to agree to support of a child after age 18 and/or graduation from high school, even when the court has no authority to order such support on its own (with the exception of a child still being in primary or secondary school at age 20). The court will enforce such agreements as a matter of contract law.

However, a court cannot increase or reduce post-majority support agreed to by the parents, unless the agreement grants the court the power to do so.  Nevertheless, if an agreement for post-majority support is part of a court decree, the court is allowed to modify it upon a finding of a substantial change of circumstances.