While all of us are very different, one thing that most of us can agree upon is that more than almost anything, we love our children and want to provide for them. While North Carolina law does, of course, place the responsibility on parents to provide for their children, for the most part, it is not something we need to be instructed to do by law. It’s just the natural tendency of a parent – something that we want to do, and that every day most of us try to do to the best of our ability.
While all of this is true, one fact about divorce is that it can make things more difficult financially for families. When moving from one home, one shared life, and one joint set of bills to two, a certain amount of financial stress can understandably be expected. This financial stress can be magnified when the divorcing couple has young children who have ongoing financial needs. In a large number of divorce cases in North Carolina, when a couple divorces, the spouse who does not have primary custody of the children, particularly if they are the higher-earner, will have the responsibility of paying child support to the parent who has custody of the children for the majority of the time. By law, the parent who has fewer than 123 overnights per year with the children is considered the non-custodial parent for purposes of paying support.
Child support is initially determined during the divorce process itself, either by the court or by agreement of the parties themselves. If a court determines a support obligation, it does so by utilizing a formula which weighs the ratio of the parents’ incomes against the number of overnights that each parent has with the child in accordance with the North Carolina Child Support Guidelines and Chapter 50 of the North Carolina General Statutes. The court will then enter a child support order which will set forth the obligation that each parent has with respect to the children involved. By contrast, if the parties decide to determine child support obligations on their own, they can do so by setting forth the details of those obligations in a separation agreement, which both parties craft with the assistance of their attorneys and sign as a mutually binding contract.
Modifying a Support Obligation
Regardless of how the initial child support obligation is determined, however, at some point, that obligation may need to be modified. After all, one truth about life is that it is never static. Circumstances are always changing. One parent may lose a job. Another parent may unexpectedly become very ill, and no longer able to maintain primary custody of the children. Perhaps a child is diagnosed with a learning disability that requires special education at a more expensive private school. All sorts of unexpected life changes and expenses may arise that lead a parent to believe that modification of an existing child support obligation may be necessary. The question then arises – if modification is necessary, what steps must be taken?
First, it is important to determine how the initial support obligation was determined. If the parties initially entered into a separation agreement which set forth their obligations without the involvement of the court, then the parties should, ideally, seek to modify that agreement together to better fit their current life circumstances. If, however, they are unable to do so for any number of reasons, a request for the court to make a support determination can be filed as a separate civil action is necessary, provided that the party requesting the support has standing to bring the action. A child support action must be brought either in the county where the parent or child resides or in the county where the child is physically present.
Typically, if a parent wishes to have a child support obligation modified, the general rule, as set forth in the North Carolina Child Support Guidelines, is that the parent must show a “substantial change in circumstances” has occurred which requires modification of the existing child support obligation. This substantial change in circumstances may be shown in a variety of ways:
- At least three years have passed and the amount of support set forth under the current obligation is at least 15% different (either more or less) than the new suggested amount: If the parent requesting the modification can meet this burden of proof, the court will presume that the support amount should be modified.
- The needs of your child suddenly change: Perhaps you unexpectedly incur additional regular expenses for your child for a pressing medical or educational reason – perhaps your child has been diagnosed with a learning disability or medical need that necessitates the additional expense. On the flipside of the coin, you may request a decrease in your support obligation amount if your children were requiring expensive daycare services but have grown older and no longer do.
- Loss of a job or involuntary reduction in work hours: In these circumstances, you may no longer financially be able to meet the child support obligation, and depending upon your particular case, a modification may be warranted. It should be noted that if the parent chooses to reduce their hours or take a lower-paying job, or otherwise reduces their income by choice, this is not grounds to reduce a support obligation unless it can be shown that the child’s financial needs have also decreased simultaneously.
- A change in physical custody of the child: If you are the parent requesting the modification, and the child moves either into or out of your home, this may qualify as a substantial change in circumstances warranting the modification.
- The end of a support obligation for one or more children who are included in the support order: If a couple has multiple children, and one child is no longer eligible for support (for example, if that child turns 18), a request to modify the payment amount to reflect the correct number of remaining children will likely be valid.
All of these are typical ways in which parents show a substantial change in circumstances that may warrant a modification of an existing support obligation. It should also be noted that there are some circumstances, by contrast, which do not warrant a modification of an existing obligation. These situations commonly include filing a Chapter 11 petition for bankruptcy, a substantial increase in the custodial parent’s income, or an increase in a parent’s financial responsibility for children who aren’t part of the child support obligation in question. Certainly, an attorney who understands the complexities of the law will be able to advise you as to your particular circumstances and whether the modification you desire may be warranted.
Contact the Law Office of Dustin McCrary Today
Without question, almost every parent wants the best for their children. Doing all that you can to work toward that goal is important. At the Law Office of Dustin McCrary, we want to help you do exactly that. If you believe that you may need to seek a modification of an existing child support order, we would be glad to consult with you and learn how we might be able to help. Family law is not only our profession – it’s our passion. Call us today.