In North Carolina, parents often settle child support by agreement. Generally, parents are able to come to an agreement on child support based on the North Carolina child support guidelines. These guidelines provide instruction for families with incomes that are less than $300,000 per year.
How to Calculate Child Support
Recently, the process has changed for the payment and calculation of child support. Firms today provide child support calculations based on the guidelines to help families determine child support. After calculations are made, they can be printed in PDF form and filed with the court.The support calculations are based on each parent’s income, which may include IRAs and stock options.
Settling Child Support in North Carolina
Parents can settle child support outside of court via separation agreements. Chapter 50 of the North Carolina General Statutes regulates child support. These statutes, in addition to several others, detail who can bring a child support action; who can be obligated to pay child support; and how soon a child support case can be heard.
How Child Support Actions Can be Filed
In North Carolina, a child support action can be filed separately as a civil action, or can be joined with an absolute divorce, annulment, divorce from bed and board, or alimony without divorce.
Support may be settled via private agreement, thus avoiding litigation unless one party needs the court for enforcing the agreement. A child support action must be brought either in the county where the parent or child resides, or the county where the child is physically present.
Forms of Child Support
Child support takes various forms, such as cash payments and property transfers. However, the most common type of child support payment is cash 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 it is paid to any other entity or the court for the child’s benefit. The party who has custody, or under court order, the clerk of the court, can receive the payments.
If the clerk of court receives payment, such payments may be forwarded to the intended recipient. The following items should be included in a complaint, counterclaim or motion for child support:
- The identity of the parties and where they reside;
- The identity of the minor children, their date of birth, and where they reside;
- The current custody situation; and
- The information required by the UCCJA if custody is being sought.
Additional Allegations in Child Support Claims
Optional claims to be included involve those that address the ability of the parent without custody to provide for the child, the need of the parent with custody for the home shared by the couple during the marriage, and the need for an attorney’s fees award. A parent with custody may have a claim for attorney’s fees, so long as they are reasonable, only for a child support case, if the parent acts in good faith and is unable to afford such expenses, and if the parent required to pay the support has refused to provide support, which is adequate under the circumstances existing at the time the suit was initiated.
The Court’s Evaluation of Claims
To determine whether a parent has refused to provide support, the court takes a few considerations into account:
- Reasonable living expenses of the parent with custody;
- Past and present expenses of the child; and
- If applicable, the amount of support provided by the parent without custody.
For the court to make a determination about the “reasonableness” of attorney’s fees there must be evidence of the nature and scope of the legal services, the time and skill required, and the connection between the typical fee in such a case and the one requested in the present case.
Financial Affidavits in Child Support Claims
Determining who needs to fill out a financial affidavit will depend upon the local rules of the court where the case is filed. Some counties require one party to complete the affidavit, while others require both parties to do so. The local rules will also detail the time for filing such an affidavit, as well as whether a party must provide the other with a copy.
It is suggested that a Plaintiff bring documents that verify the data provided in the financial affidavit. Such documents include checkbook registers and receipts. Some counties require recent pay-stubs to be attached to the financial affidavit for verification purposes.
The financial affidavit itself requires the allocation of the needs and expenses between the parent with custody and the child. A fixed percentage can be used to divide up the expenses unless doing so would be considered unreasonable.
If the parent with custody remarries or begins living with other third parties, she is not permitted to total the expenses for everyone in the home, and then apportion the share of the child.
Reasonable Expenses of Each Parent
Additionally, the current reasonable expenses of a parent only include actual or already planned costs. Expenses that have not been paid or planned for will be viewed questionably. Simply put, a parent should not inflate expenses on the affidavit.
Hearings on Child Support
Either party in a child support case is permitted to request a child support hearing if they cannot agree on a certain amount when:
- The combined total income of the parties exceeds $200,000 per year; or
- A party has information that suggests a deviation from the Child Support Guidelines is appropriate.
During these child support hearings, the evidence presented must address:
- The income and expenses of the parties;
- The reasonable needs of the child;
- The ability of each parent to pay child support; and
- If a “Motion for Deviation” is filed, the basis for such a request.
The court order, which is submitted by the judge, must include facts that deal with the reasonable needs of the minor, and the ability of each party to pay child support. If the court departs from the Child Support guidelines, it must explain and include facts that justify such a departure.
Deviation From the Guidelines
A party that desires to deviate from the guidelines needs to present evidence supporting that request. Considerations by the court include the standard of living of those involved, unusual necessary expenses, non-traditional forms of support, provisions for special education of the child, abnormal visitation schedule, and other demonstrable factors’ impact on the amount owed.
Deviations from the guidelines may be ordered in a sum higher than the guidelines. Upward deviations from the guidelines are common in families of wealth or families with children who have unusual needs. Downward deviations typically occur when the parent with custody of the child does not require the full amount set by the guidelines, or when the parent without custody is not able to pay the amount set by the Guidelines. In North Carolina, unless an exception applies, child support terminates when a child reaches 18 years old.
Two important exceptions to the general rule of child support since October 1, 1993, are:
- Child support obligations terminate prior to a child’s turning 18, if he or she becomes emancipated; and
- Support obligations continues when a child is 18 years of age or older when said child is still in primary or secondary school working toward to graduation, but upon reaching age 20 terminate or when a child fails to make progress toward graduation, whichever comes first.
Another exception to the rule of support after a child has reached age 18 is when he is not capable of supporting himself. Support will continue until the child is no longer physically or mentally incapable of supporting him or herself.
As has been discussed, parties can agree to child support through a separation agreement, or a party can request that the court make the award. Additionally, since a separation agreement is a contract, parents can agree to greater support obligation than required by law.
Parties may use a separation agreement as a tool to provide for certain items needed by a child. For example, parties may agree to provide for private schooling, post-secondary education, summer camp, life insurance, cost of living increases, and support of the child beyond age 18, among other situations.
These are all items that a North Carolina court cannot order on its own, without such an agreement, with the exception of pre-college schooling and extracurricular expenses. Nevertheless, a separation agreement that contains additional items, like those listed, which is integrated into a “consent order” then gives the court the power to enforce the terms of the contract. But, many parents will not enter into a separation agreement because the state of North Carolina cannot require the parent paying support to purchase life insurance or pay for college.
Changes to Child Support Provisions
Generally, courts are permitted to overrule child support amounts in separation agreements. The court has discretionary power and laws that protect a child’s interest. Therefore, no agreement or contract will deny a court such authority to enforce or modify agreed-upon support provisions.
While a court is not permitted to directly change the provisions of child support via private contract, a court is permitted to enter a child support order and/or change an existing order based on proof of changed circumstances.
Even though an agreement may provide for child support, a court is permitted to order a different amount of support to be paid. Also, if a pre-existing court order for child support exists, the court can alter the support amount based upon a showing of changed circumstances.
A change in circumstances can alter the amount of child support. This can happen in a few ways:
- The needs of the child increase (support may increase)
- The income of the parent obligated to pay decreases without any fault of his own, regardless of the change of the child’s needs (support may decrease)
- The income of both parents increases (support may increase)
- Changing the place of residence, either by a parent or child, can also affect support.
The Standards of Modification
There are two approaches the court can take when deciding whether to modify child support and they depend on whether the original award resulted from a separation agreement or a court order. If the original award came from a separation agreement, the party seeking to modify must show the amount of support necessary to meet the reasonable needs of the child at the time of the hearing. Simply put, the trial court can disregard a prior settlement relating to the amount of child support, even if the parties thought it to be fair.
On the other hand, if the original order came from a court order, the party seeking to modify must show changed circumstances, which means a change that is “substantial and material.” The court will only look at changes since the entry of the most recent child support order. The court will look at the reasonable needs of the child, ability of each parent to pay, and other financial factors provided under the Child Support Guidelines.
Creating a Solid Agreement
The current North Carolina child support guidelines acknowledge that child support is a shared obligation. The shared financial obligation of the parents is calculated by considering the gross income of both parties as if the combined income dictates evident costs of child-rearing, work-related daycare, responsibility for other children, and extraordinary medical expenses of the child. Such calculations are made on pre-printed worksheets, discussed below.
The Three Potential Custody Arrangements for Child Support
The appropriate worksheet will be determined by the type of custody arrangement in effect. The three types are sole, joint, and split custody. Sole custody calculations will be made with Worksheet A, joint custody under Worksheet B, and split custody under Worksheet C. To qualify as a sole custody arrangement, a child must stay overnight with the parent who does not have custody less than 123 nights per year. To qualify as a joint custody arrangement, the other parent must have the child at least 123 nights each year. To qualify as a split custody arrangement there must be more than one child, and a situation where one child lives with one parent full-time, and another child lives with the other parent full-time.
Either party can request that the court deviate from the guideline amount. Such deviation can be upward or downward.
Requesting Deviation From the Guidelines
A party must request a deviation by written notice at least 10 days before a deviation hearing, unless it was requested initially when the case was filed. When a request is made, the court must hold a hearing, and examine the evidence as it relates to the reasonable needs of the child and abilities of each parent to provide support. Then, and only then, can the court deviate from the guidelines if it finds “by greater weight of the evidence” that in applying the guidelines the reasonable needs of a child would not be met or would be exceeded. The guidelines also state that they do not apply when their combined monthly income exceeds $200,000 per year. In these cases, the parties need to negotiate an amount they both agree to, or ask the court to decide whether a deviation greater than the maximum guideline amount would be justified under the circumstances.
Using the Appropriate Worksheets
A basic overview of the worksheets is as follows: Worksheet A is used if one party has sole custody of the child, and the other parent’s visitation totals less than 123 nights per year. While, Worksheet is B is the proper form to use when the parent who does not have custody of the child spends 123 overnights or more with the child. Finally, you should use Worksheet C if each parent has sole custody of at least one child from the marriage. The court takes several factors into account, such as gross income of a parent. The Guidelines provide a broad definition of gross income, and certain calculations must be made if self-employment or operation of a business is involved.
Statements About Actual Income
Two significant points should be acknowledged for a person’s actual income. First, The Child Support Guidelines occasionally allow for a parent to include his/her imputed income for a determination of child support when she is voluntarily unemployed or underemployed. Imputed income is those monies a party forgoes by performing those tasks him/herself that otherwise would have been performed by someone else. However, when a parent is caring for a child under three years old who she is required by law to care for, or a child who is physically or mentally incapacitated, the imputed income exception applies.
Second, a party must verify his income. If a party fails to do so, the other party is entitled to relief. In determining a child support award, the court will look at the income of both parents at the time the child support award is made. But, it is important to note that a parent’s potential income can be a factor that the court considers.
There are four adjustments that can impact a child support award amount:
- Pre-existing child support obligations and responsibility for other children;
- Payment for health insurance premiums;
- Work-related childcare costs; and
- Extraordinary expenses for a child’s medical bills, education, transportation and the like.
The first exception deals with a deduction being made for an amount a person was bound to pay by court order or separation agreement. The deduction for responsibility of other children deals with money paid to support other minor children either from the current marriage, or a previous one.
The health insurance deduction considers an employee’s cost to insure his or her minor child. A parent’s work-related childcare costs are deducted at a 75% rate; therefore, accounting for a 25% childcare federal tax credit. Work-related daycare costs include the costs relates to a parent’s working, as well as a parent’s looking for work.
The extraordinary expenses exception deals with the unusual medical, educational, and transportation expenses of a child, regardless if they’re temporary or permanent. If such expenses are short-term, a parent should note it within a court order and worksheet.
A child who receives support is not taxed, and the parent paying the support cannot claim the support as a tax deduction. While Section 71 of the Internal Revenue Code allows a deduction for a person who pays alimony to a spouse, child support payments are exempted. Under this same section, child support includes those payments specifically designated as such, as well as those payments that involve a condition relating to the child. For instance, if an alimony payment is to terminate upon a child reaching the age of 18, the alimony payments will be considered non-taxable, because they will be deemed child support.
Drafting a Child Support Order
After being awarded child support, there are additional steps to be taken by the parties. Often the parent who prevails will be asked by the court to draft the child support order. Such a task can be challenging and complex. In particular, a court must show that it took “due regard” of various factors like estates, conditions, accustomed standard of living and the like, in coming to its conclusions. Additionally, if the court departs from the Child Support Guidelines, the basis for such a departure must be established. You may find, even after integrating child support in a separation agreement or court order, that it is not paid on time or in the full amount.
Collecting Child Support
While there are civil remedies available for child support collections, there are also criminal remedies available. Section 14-322 of the North Carolina General Statutes protects neglected and abandoned children. Under this law, if a parent willfully neglects or refuses to provide support to his or her biological or adopted child, said parent can be fined (up to $500), imprisoned for up to six months, or the court can order both. Additionally, the parent may be required to pay child support to the abandoned child.
Children born out of wedlock are protected under Section 49-2 of the North Carolina General Statutes, which criminalizes neglect and failure to provide supports as a misdemeanor.
Federal Child Support Enforcement Mandates
Title IV-D of the Social Security Act, 42 U.S.C. sections 651-667, originated a federal child support enforcement program that required every state to adopt a plan meeting certain standards for child support collections. One of the program’s goals is to secure reimbursement from the parent obligated to pay, for public assistance disbursed through Aid to Families with Dependent Children, or AFDC.
North Carolina, in compliance with federal law, has created its own enforcement program under the Department of Human Resources (DHR). Those provisions are found in Chapter 110 of the North Carolina General Statutes. Local units operating under DHR’s authority primarily bring child support actions for AFDC recipients. Nevertheless, those not on AFDC may receive the same resources and help by applying and paying a small application fee.
Even though you may be charged certain fees by your local DHR unit and recover such amount via collected support payment, this remedy can help if you are unable to afford private counsel to represent you in seeking or collecting child support. A major disadvantage to this enforcement agency is its overburdened caseload.
Reciprocal Child Support Enforcement
States across the U.S. have implemented “reciprocal enforcement” as it relates to child support. These laws allow support obligations to be enforced from state to state. In North Carolina, the Uniform Interstate Family Support Act (UIFSA) allows for such reciprocity across state lines. Currently, 26 states in the U.S. have adopted UIFSA. The application of UIFSA allows for the establishment, enforcement and modification of out-of-state support orders. Unlike URESA (Uniform Reciprocal Enforcement of Support Act), a parent who has custody of a child can establish a support order in her own home instead of just the state where the person who owes support resides.
These interstate (between states) actions are civil and not criminal in nature. One of the main issues with the prior Act was its allowance of multiple, inconsistent child support orders affecting only one family in different states. The Act also made it possible for the parent obligated to pay to be able to modify an order issued in another state. For example, a parent in Texas would be able to modify a North Carolina order. UIFSA provides protection and prevention from these types of issues. UIFSA gives priority to one order, requiring recognition and enforce of that primary order and prohibiting other states from modifying an existing primary order.
In child support cases, a court has exclusive authority under UIFSA over the support order so long as that state remains the residence of the parent obligated to pay, the parent with custody or the child, or until each party files written consent with the exclusive state authorizing another state’s court to assume exclusive authority over the case. In the instance where there may be more than one child support order, and the states each have exclusive authority via the party’s residence, the court presiding over the UIFSA proceeding must recognize the support order issued by the court in the child’s current home state.
In a situation where none of the courts issuing co-existing orders have exclusive authority over a case, UIFSA does not require recognition of any of the prior order except those with unpaid vested child support arrearages. In North Carolina, a court must follow the UIFSA rules even in cases where the other state has not 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. To make a valid ruling against a Defendant who is not a resident of that state, a court must have personal jurisdiction over him.
Grounds Under UIFSA
There are a few grounds created by UIFSA that allow for a state to reach a non-resident. UIFSA child support matter may proceed when there is jurisdiction consistent with the due process clause of the Constitution, and one of the “long arm” grounds is fulfilled. In NC, a court can exercise personal jurisdiction over non-residents under UIFSA if any of the following apply:
- The non-resident was personally served with process in North Carolina;
- The non-resident submits to jurisdiction by consent, a general appearance, or filing a responsive pleading waiving the issue of lack of personal jurisdiction;
- The non-resident resided at one time in North Carolina with the child;
- The non-resident resided in North Carolina at one time and provided prenatal expenses or support for the child;
- The child resides in North Carolina as a result of acts or directives of the non-resident Defendant;
- 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;
- The non-resident has asserted paternity in the paternity registry maintained in North Carolina; or
- There is some other basis for the exercise of personal jurisdiction consistent with constitutional principles.