Under North Carolina law, both parents certainly have the responsibility of providing support for their minor children in any number of ways – emotionally, physically, and financially. For the most part, parents want to, and do try their best to provide for these needs as best they can. It is also true, however, that divorce is difficult, particularly when the couple divorcing has children who have an ongoing need for support. While for the most part, parents want to do what’s best for their children, questions can often arise during the divorce process as to any number of issues, including which parent might owe child support, and if so, how much.
It is easy for misunderstandings to arise regarding support obligations. In some circumstances, a parent may think that because the other parent received the family home in the property settlement, they don’t have the obligation to pay support. In other circumstances, questions may arise as to what exactly constitutes support – is it a monthly payment? Is it providing medical insurance? Is it paying for private school? Does one parent have to continue paying support even after the other remarries? Can the parties agree to a monthly child support amount, or is that obligation always determined by the court?
All of these questions are understandable, and to be expected. After all, the law can be complex, and often confusing. Certainly, consulting with a knowledgeable and experience family law attorney about your questions and concerns regarding child support and any other divorce issues you may encounter is important, and necessary in order for the divorce process to go as smoothly as possible. Understanding the basic laws surrounding support can be helpful as a foundation, however, and can take a bit of confusion out of the process as a whole.
Which Parent is Responsible for Paying Support?
Essentially, in North Carolina, it is only the non-custodial parent who must make support payments. Under the law, if the parent has less than 123 overnights per year with the child(ren), that parent is considered non-custodial for purposes of paying support. The custodial parent, by contrast, is assumed to already be spending the required amount on the children directly, as they are living with that parent and that parent is meeting their needs for the majority of the time. In cases of shared physical custody, that is, where each parent has at least 123 overnights with the child, child support is ultimately determined based on a formula that weighs the ratio of the parents’ incomes and the number of overnights that each parent has with the child.
Child support is most often determined during the divorce process itself, either by the court, or through the agreement of the parties, though a request for child support can be filed as a separate civil action if 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.
How Does the Court Determine How Much Child Support I Owe?
Under North Carolina law, there are a number of factors that determine the amount of child support owed by a parent, and child support is generally regulated by Chapter 50 of the North Carolina General Statutes. The enumerated factors for consideration include, but are not limited to the incomes of both parents, the number of children in need of support, any pre-existing support obligations for children from other marriages, health insurance premiums paid by either parent for the children, daycare or child-care related expenses paid by the parents, and the nature of the child custody arrangements between the parents. “Extraordinary expenses” paid on behalf of a child, including expenses for visitation-related travel, extracurricular activities, or private school tuition that are paid by one parent may also be considered.
Generally, the exact calculation of the child support obligation is governed by the North Carolina Child Support Guidelines, which are available on North Carolina’s Child Support Enforcement website, and which apply to families with incomes of less than 0,000 per year. In circumstances where the couple makes more than $300,000 per year, the court will use its discretion in calculating support based upon the lifestyle and needs of the children involved.
When determining the amount of child support that a parent will owe, the North Carolina Child Support Guidelines will consider income from almost any source, including, but not limited to:
- Bonuses and/or commissions;
- Capital gains;
- Severance pay;
- Annuity income;
- Social security benefits;
- Workers’ compensation income;
- Alimony received from a former spouse;
- And more.
Some income is typically excluded from calculation of a child support obligation, and this usually includes:
- Support received for other children;
- Food stamps or other food-related benefits;
- Other forms of general public assistance.
Other income may be excluded on a case-by-case basis depending upon circumstances, and an attorney familiar with family law will be able to best advise you as to your particular situation and whether a source of income is likely to be included or excluded in calculating a support obligation.
Local court rules will typically dictate how parents should provide proof of their income as well as proof of the child’s monthly needs and expenses for child support purposes. In the majority of counties in North Carolina, one or both parents must file a financial affidavit using a specific form. The local county rules will also set forth the time in which the financial affidavit must be filed, as well as setting forth what types of documents must be provided to verify the data provided in the affidavit.
North Carolina also provides online worksheets to help determine the amount of support likely to be required of a parent, and there are different worksheets depending upon the type of custody arrangement that applies – whether sole (worksheet A), shared (worksheet B), or split custody (worksheet C). While obligations are usually determined using this calculator, courts do have the authority to deviate from that amount, should it find that the amount is inconsistent with the child’s needs, or that it would otherwise be unjust or inappropriate. In practice, however, courts typically do not deviate from the obligations determined by the state guidelines, and usually require a showing of extraordinary circumstances before doing so.
In addition to direct support payments to the other parent, the court may also require the paying parent to contribute to other necessary expenses for the child including the costs of childcare and/or medical insurance. Child support payments may take various forms, although the most common type of child support payment is cash, either on a monthly basis, or in weekly installments. The parent with custody of the child receives the support by the parent who does not have custody, or in some cases depending on circumstances, it is paid to another entity or to the court for the child’s benefit.
How Long Am I Required to Pay Child Support?
Child support payments are typically required to continue until the child turns 18, or graduates from high school, whichever is later. Under no circumstances will child support continue beyond the minor’s 20th birthday, unless it can be established that the child has a condition which makes he or she incapable of supporting themselves at that time.
What if I Need to Modify the Amount of My Child Support Payment?
Without question, life can throw its share of curveballs. Often, unforeseen circumstances arise. One parent may lose a job. Another parent, or a child may become ill, and find themselves burdened with mounting medical expenses. Perhaps a child requires special education for a need that they have. Any number of circumstances can arise, and when this happens, a parent may wish to have the child support obligation modified.
If a parent wishes to have a child support obligation modified, he or she can request a hearing with the judge assigned to the case. That judge will have the authority to increase or decrease the support amount depending upon the circumstances, and depending upon the evidence presented. Typically, modification of a support obligation will require a showing that a “substantial change of circumstances” has occurred since the entry of the existing obligation.
According to the North Carolina Child Support Guidelines, if at least three years have passed and the amount of child support ordered under the current obligation is 15% different (either more or less) than the new suggested amount, based upon the changed incomes of the parties or because the relative expenses for the children have changed, the court will presume that the support amount should be modified.
Does Child Support Always Have to be Court-Ordered? Can Parents Agree on a Support Obligation Together?
In North Carolina, and across the country, couples are increasingly seeking to approach the divorce process in a more cooperative and collaborative way. This means working together, with their attorneys, to resolve the issues between them as amicably as possible, and without the time, expense and stress often associated with long, drawn-out court battles. Child support is one such issue that can be, and often is, negotiated and settled between the parties in an out-of-court settlement agreement.
One of many advantages to determining child support in this way is that the parents know their family best. They know the lifestyle to which their children are accustomed, and they understand their children’s needs in a way that a court could not. Settling a support obligation by agreement provides parents with the opportunity to make choices that are best for their particular circumstances.
Another advantage of determining child support obligations by agreement is that the parties can also agree to modify that agreement when their life circumstances change. Whereas a court order requires modification through and only by a court, parents can modify their agreement as needed, provided that they are both on the same page and want to do so. This is not to say that a court cannot intervene if necessary.
Certainly, if one party begins to refuse paying support, or to pay less than the agreed upon amount, the other party can request court intervention. While courts will generally presume that the amount the parties agreed to was fair, the party seeking the modification can produce evidence to support their position, and courts do have authority to take action if the behavior of one party is in violation of the agreement, or if the amount agreed to is ultimately determined to be unreasonable.
What Remedies Do I Have if my Ex-Spouse Refuses to Pay Required Child Support?
It is an unfortunate reality that in some circumstances, parents simply don’t do what they should. Despite being ordered to pay child support, some parents do not do so, either because of poor financial management, difficult circumstances, or sadly, a desire to “punish” the other spouse. Fortunately, in these cases, there are both civil and criminal remedies available. Section 14-322 of the North Carolina General Statutes exists to protect neglected and abandoned children. Under the terms of this statute, if a parent willfully neglects or refuses to provide support to his or her child, that parent may be fined, imprisoned, or both, in addition to being required to pay the back due support.
In compliance with federal law, North Carolina has also created a child support enforcement program under the Department of Human Resources. The provisions governing that program can be found in Chapter 100 of the North Carolina General Statutes. While pursuing these remedies may be somewhat time consuming, it is often necessary to do so when one parent simply refuses to live up to their legally imposed child support obligations. An attorney with knowledge and experience in the area of family law will be able to advise you specifically as to what steps would be best to take to seek to enforce a child support obligation that is not regularly being paid.
Contact the Law Office of Dustin McCrary Today
The end of a marriage is a difficult time for everyone, and divorce can be complicated. At the Law Office of Dustin McCrary, we understand that well, and it is our passion to help our clients through this difficult time so that they ultimately emerge happier and healthier on the other side. If you have additional questions about child support, or any other of the many issues that arise during the divorce process, we would be honored to have the opportunity to help you. Contact us today. We look forward to speaking with you soon.