During the course of a divorce, there are many, many issues that will require your attention, as well as the commitment of both parents, if possible, to cooperate in a way that works toward the best interests of all involved. Child support is certainly one of those issues. Understandably, child support is one of the aspects of divorce about which we most frequently receive questions. After all, ensuring that their children continue to be supported and provided for adequately is often one of the matters of utmost concern for most parents.
In North Carolina, parents often settle child support, as well as many other issues, by agreement. No longer is it necessary to battle every issue out in a courtroom. Generally, it is best for the children, and for the parents if they can come to an agreement on child support, and many are fortunately able to do so.
While every circumstance is different, and each case is unique, there are some frequently asked questions regarding child support for which general answers can be helpful, as parents prepare to address this aspect of the divorce process. Certainly, this information is no substitute for the legal advice of an attorney regarding your particular situation, and consulting with your attorney is always advised. Generally, however, some of the questions we receive include the following:
- How do I file an action for child support? 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.
- How is child support calculated? The North Carolina Child Support Guidelines provide instruction for families with incomes that are less than $300,000 per year. There are various worksheets that are used to calculate the amount of support owed, depending upon particular circumstances, which are affected by the custody arrangement that the couple has with respect to their children:
- Worksheet A: This worksheet is used when one parent has custody of the children, and the other parent’s visitation totals less than 123 nights per year;
- Worksheet B: This worksheet is used when the parents have joint custody and the non-custodial parent’s visitation totals more than 123 nights per year;
- Worksheet C: This worksheet is used in a split custody situation in which each parent has sole custody of at least one child from the marriage.
The child support calculation takes a number of different factors into account, including:
- The parents’ gross monthly incomes
- Pre-existing child support obligations or other dependent children for whom the supporting parent is responsible
- Any work-related daycare or childcare expenses paid by the parents
- Health insurance premiums paid by either parent for the child
- “Extraordinary expenses” paid on behalf of a child, which can include things like expenses for visitation-related travel or private school tuition
If you and your spouse have a combined gross income of more than $300,000 per year, these guidelines will not apply, and the court will exercise its judgment in setting support at an amount that meets the reasonable needs of the children.
- Will a court ever deviate from these guidelines when issuing a child support award? Yes, if it can be proven that circumstances warrant doing so. A parent that desires to deviate from the guidelines needs to request deviation by a written notice at least ten days before a deviation hearing, unless the deviation was requested when the case was initially filed. The party requesting the deviation must 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 the demonstrable impact of other factors on the amount owed. Deviations from the guidelines may be ordered in a sum higher than the guidelines, and 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.
- What is the most common type of child support payment? 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 from 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.
- Can parents agree upon child support in an agreement instead of having it determined by the court? Yes. As with almost every issue in a divorce, parents can decide to agree upon a child support amount outside of court in separation and/or divorce settlement agreements. Making the choice to settle child support in your own agreement outside of court gives you the flexibility to tailor the support amount and schedule of payments to the particular needs, and it also gives your family the flexibility to later agree to modify the support amount as your life circumstances and the needs of your children change.
- What happens if we need to modify child support? If the parties initially set forth their child support obligations in an agreement, then generally, the parties can likewise change the support obligation by agreement, if both spouses consent and wish to do so. Any change made would of course need to be in writing, and signed by both parties.
If the parties cannot agree on their own to change the award, or if the award was initially entered by the court, then the party seeking the modification must persuade the court that there has been a “significant change of circumstance” since the last order, which has resulted in either an inability to pay the previously agreed upon amount, or which has resulted in an ability to live on the previously agreed upon amount. While it will ultimately be up to the court to determine if a substantial change in circumstances has occurred, modifications of child support awards are possible, if the need is proven.
- What if the other parent refuses to make their required child support payments? Needless to say, state law requires that parents make their required child support payments on time, and in the amount awarded. If not, there are both civil and criminal penalties that may apply. 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, that 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 past due child support to the abandoned child.
- When does a child support obligation terminate? In North Carolina, unless an exception applies (either the child is still completing high school (this exception applies until the age of 20), or when a child is physically or mentally incapable of supporting him or herself), child support terminates when a child reaches 18 years old.
Without question, child support is an issue that almost every family feels concerned about as they begin the divorce process. Though you may no longer be husband and wife, you are parents forever – and it is only understandable that you want to do all that you can to continue to ensure that your children have all that they need to thrive. At The Law Office of Dustin McCrary, we understand all of the complexities of divorce law, including child support law, in North Carolina, and we are here to help you through this time, and to work with you toward achieving the best possible outcome for your family. Call us today.