Child Support FAQ

FAQ

Are stepparents required to pay child support?

A stepparent may be responsible for paying child support for a child, or children, that do not come from the marriage to the parent. However, such responsibility depends on the facts of the case. There must be an agreement to pay support that is signed and notarized, and such contract will be enforceable. Absent adoption, a stepparent can assume an obligation for child support by taking the child into his/her home, acting in the role of a parent (loco parentis), and remain obligated to provide support so long as the relationship exists between stepparent and child. After a divorce, the stepparent is not required to continue support the child without a formalized agreement.

 

Third-party contributions may be used to support a deviation from the North Carolina Support Guidelines. Thus, the parent receiving the payment must show the actual expenses and the contribution being made by the stepparent. Nevertheless, a stepparent generally has no obligation to provide support for the children of her spouse’s prior marriage.

 

Can the courts overrule child support amounts?

Generally, courts are permitted to overrule child support amounts in separation agreements. The court has discretionary power and laws that protect a minor 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 a showing 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.

 

Can I revoke visitation if my ex hasn’t paid child support?

You cannot revoke visitation from a spouse who doesn’t pay child support. Child support and visitation are two legally independent components. For example, if one party has not received the appropriate child support payment, he or she may not decide on his or her own to bar the other parent from any visitation rights. There is no supporting legal foundation for such a move. In addition, such retaliation can have a negative impact on your child.

 

Can my spouse avoid paying child support if he files bankruptcy?

Child support obligations are not dischargeable in bankruptcy court.

Do I have to pay child support if I have joint custody?

Sharing joint custody of your child will not prevent you from having to pay child support. Even if both parents share custody equally, one parent will inevitably have to pay child support. Usually, the only way to avoid being required to pay child support is if both parents earn exactly the same income and spend the same amount of time with the children. In North Carolina, the child support guidelines calculate the obligation to pay based on time spent with each parent and the income of each parent. So even if the child spends equal time with each parent, the parent with the higher income will owe child support.

How can a child support agreement be modified?

There are two approaches the court can take when deciding whether to modify child support and those 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. 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.

Changing support of a court order is a higher standard than changing support of a separation agreement. For a separation agreement that details child support, the court will suppose the amount of support to be adequate. But, a court can disregard the amount of such support in a separation agreement if it so desires, because a previously agreed upon level of support is merely one of many factors to be considered at a hearing.

How do I decide which child support worksheet to use?

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.

Note: In comparison to Worksheet A, a secondary parent’s obligation under Worksheet B generates a lower child support amount.

 

How do I fill out child support worksheets?

When filling out the respective worksheets, a number of components must be considered – the most common involving “gross income.’’  The North Carolina Child Support guidelines are broad in the definition of gross income and special calculations are to be made if self-employment or the operation of a business is involved. In looking at a parent’s income, there are two important features that involve imputed income and verification of income.

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 3 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.

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.

How long will my spouse have to pay child support?

In North Carolina, a child under 18 years of age can receive child support. If a child is emancipated before 18, support ends at that earlier age. However, there are two situations in which a child over 18 can receive support. The first situation involves a child who has not graduated from high school, but is 18 years old. A child who is enrolled in high school will continue to receive support until the earlier of (1) reaching age 20; or (2) graduating from high school. The second situation involves a parent’s written agreement to support a child beyond age 18. So long as the agreement is valid and enforceable, the court can implement the support outlined in the agreement.

How is child support determined in North Carolina?

All states have adopted guidelines that set automatic rates of child support according to certain factors related to family income and the number of children. The current North Carolina Child Support Guidelines became effective on January 1, 2015, and provide detailed instructions for those families with incomes of less than $300,000 per year. Child support calculations are made by using pre-printed worksheets available in three forms. Here we will walk through each factor that the guidelines consider in determining the obligation.

NUMBER OF OVERNIGHTS

Your custody schedule has a direct impact on your child support obligation. Child support is calculated based on the number of overnights the child or children spend with each parent. Worksheet A recognizes a situation in which one parent has primary custody (more than 243 days per year). Worksheet B is applicable to parents who share custody jointly.

MONTHLY GROSS INCOME

The income of both parents is used pursuant to our guidelines. This figure should reflect the gross income before taxes. Income can include more than a salary. It factors in income from any source. A few of the types of income that are to be included are as follows: commissions, bonuses, dividends, severance pay as well as rental income, gifts and alimony received.

PRE-EXISTING CHILD SUPPORT

If either parent is currently paying child support for another child, that child support obligation will be included in your calculation.

MONTHLY WORK-RELATED CHILD CARE COSTS

Reasonable work-related childcare costs are part of the child support calculation. This refers to the cost of day care, nannies or babysitters.

HEALTH INSURANCE PREMIUMS

The out-of-pocket expense to insure each child is recognized by the guidelines. If an employer pays the premiums, then it should not be included on your child support worksheet. If the premium paid is for a family plan, and there is no way to determine how much of the premium goes towards the child’s insurance policy, the amount paid each month should be divided by the number of people on the plan to determine how much of the premium is for the child.

EXTRAORDINARY EXPENSES

Expenses for special or private elementary or secondary schools to meet a child’s particular educational needs (for instance, if the child is disabled) are considered by the guidelines. Extraordinary expenses can also refer to the cost of transporting the child between the parents’ homes.

FACTORS NOT CONSIDERED

Some fixed expenses that are used in other states for the calculation of child support, such as rent or mortgage, automobile payments, and utilities, are not expressly used in making the child support calculation in this state. Instead, such expenses are implicitly accounted for, as a general matter, in the North Carolina Guidelines amounts. Child support is a payment in an amount to meet the reasonable needs of the child for health, education and maintenance taking into consideration the incomes, childcare costs and health insurance costs, etc. of each party.

How is child support determined if combined gross income is over $300,000?

In such cases, the parties can either negotiate an amount of support that works for both parties, or the parties need to ask the court to decide whether a deviation above the maximum guideline amount is justified under the current situation.

How much will I have to pay in child support?

There are four adjustments that can have an impact on the amount of child support owed by a parent. These four factors include: (1) preexisting child support obligations and responsibility for other children; (2) payments for health insurance premiums; (3) work-related childcare costs; and (4) extraordinary expenses for a child’s medical bills, education, transportation and the like. The deduction from gross income for pre-existing obligations refers to the amount an individual is bound to pay pursuant to an existing court order or separation agreement.

The deduction for responsibility for other children refers to the money paid to support other minor children from either the current marriage or a previous one. The health insurance deduction takes into account the employee’s cost to insure the minor child. Work-related childcare costs are deducted at a rate of only 75%, thus taking into account the 25% federal tax credit for childcare. “Work-related” daycare costs include not only those costs related to the parent’s working but also to the parent’s looking for work.

Finally, extraordinary expenses encompass a child’s out of the ordinary medical, educational, and transportation expenses, whether permanent or temporary. If the expenses are short-term, this should be noted on both the worksheet and within any court order.

If I have custody, will I receive child support?

If you have custody of your child, the non-custodial parent will be ordered to pay child support. The paying spouse will be ordered to pay a percentage of his or her gross monthly income. North Carolina has specific guidelines that govern child support payments, but the court has the ability to deviate from these guidelines.

If my ex remarries and has a child, will it affect the amount of support for our children?

Generally, remarriage and the addition of a child with a new spouse will not affect the current obligation of a former spouse. In North Carolina, child support is based upon (1) the combined income of the parties; (2) the number of overnight stays a child has with each parent; (3) expenses for children with special needs; and (4) pre-existing support obligations.

A spouse who wants to lower his support obligation for a child from a previous marriage must seek a modification from the court by filing a motion to deviate. The spouse seeking a modification must show that the support obligation was “unfairly burdensome or unjust.”

What information will the parties need to provide in a child support case?

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. Additionally, the present reasonable expenses of a parent only include actual or already planned expenditures. Expenses that have not been paid or planned for will be viewed questionably. Simply, a parent should not inflate expenses on the affidavit.

Is child support taxed?

No, 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 which 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.

Is it possible to deviate from the North Carolina child support guidelines?

In North Carolina, a judge is allowed to deviate from the guidelines when the number provided by them is less or more than the child actually needs. If a party wants to deviate from the Guidelines, he must present evidence supporting the need to deviate. Either parent can request a deviation from the amount set in the Guidelines, which may be upward or downward.

Instances that allow such deviation include a child’s standard of living, support that takes an untraditional form, and unusual visitation scheduling, among other factors that impact the amount owed.

In a family with a combined total income of over $180,000, the parent with custody usually requests an upward deviation from the guidelines.  Upward deviations from the guidelines are common in families of wealth or families with children who have unusual needs. The parent without custody, regardless of income, often is the parent requesting a downward deviation. In NC, a deviation is solely at the discretion of the judge. 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.

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.

Can child support be appealed?

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. North Carolina appellate courts have invalidated child support orders for reasons such as a lack of specificity. In particular, a court must show that it took “due regard” of various factors such 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.

What are 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.

 

What are the advantages to a separation agreement?

Child support can be determined either through a separation agreement or by the court. Since a separation agreement is a contract, the parents are able to agree to one assuming greater obligations than required by law. For example, parties may agree to provide for private schooling, post-secondary education, summer camp, life insurance, cost of living increases, or 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 separation agreement because the state of North Carolina cannot require the parent paying support to purchase life insurance or pay for college.

What if a child support claim involves another state?

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 an NC order. UIFSA provides protection and prevention from these types of issues. UIFSA gives priority to one order, requiring recognition and enforcement 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 NC, 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.

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 NC at one time and provided prenatal expenses or support for the child;
  • the child resides in NC as a result of acts or directives of the non-resident defendant;
  • the non-resident engaged in an act of sexual intercourse in NC 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 NC; or
  • there is some other basis for the exercise of personal jurisdiction consistent with constitutional principles.
What should be included in a complaint, counterclaim or motion for child support?

The following items should be included in a complaint, counterclaim or motion for child support: (1) the identity of the parties and where they reside; (2) the identity of the minor children, their date of birth, and where they reside; (3) the current custody situation; and (4) the information required by the UCCJA if custody is being sought. 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 of an attorney’s fees award.

 

 

What North Carolina statutes apply to child support?

In North Carolina, Chapter 50 of the North Carolina General Statutes (NCGS) sets out guidelines that regulate child support. These laws (referred to as statutes) outline certain aspects of child support, such as the persons permitted to bring a child support action; the persons to be held responsible for payment; and the timeframe in which a support case should be heard in court. In NC, a party may file a custody separate, or jointly with another action. If a party wishes to file a custody case jointly, it must be with either an annulment, absolute divorce, divorce from bed and board, or alimony without divorce case.

As has been stated, a child support case may be settled by the parties via a private agreement. The court in which the action can be heard must be either (1) the county where the parent/child resides; or (2) the county where the child is physically present.

Child support can be paid in numerous ways, such as in cash or even by transferring property, with the most common type of payment being cash. Cash support payments are typically made in monthly installments; however, they occasionally are made in weekly installments. The support payments are made by the parent who does not have custody of the child, and is received by the parent with custody of the child. In North Carolina, support payments can also be paid to people or entities acting on behalf of/for the benefit of the minor child. In such circumstances, either the party with custody can receive the support payments, or the clerk of court can receive the payments. If the clerk of court receives the payments, such payments will be sent to the intended party.

What can I do if my ex refuses to pay child support?

There are a number of ways to enforce a court order or agreement for child support. If the child support is set up in a contractual agreement, the basic remedy is a suit for breach of the contract. If child support was originally ordered by the court, the order is enforceable through the contempt powers of the court. A number of remedies are available for the enforcement of child support including: seizure of real estate and personal property, orders that bonds be posted, assignment of wages, garnishment, arrest, and interception of income tax refunds.

Outside of the above listed remedies, there are also criminal remedies that might be available to you to collect past due child support. One North Carolina statute states that if a parent willfully neglects or refuses to provide adequate support for his or her biological or adopted child, that parent is guilty of a misdemeanor and may be fined up to $500, imprisoned up to six months, or both. The parent may also be required to pay child support to the abandoned minor. A similar North Carolina statute also protects illegitimate children. Due to the United States Social Security Act, every state has adopted a protective program to enforce child support payments. In compliance with federal law, North Carolina has instituted its own child support enforcement program under our Department of Human Resources (“DHR”).

The Child Support Enforcement Agency is a government agency that works with custodial parents to obtain child support. Attorneys can also assist custodial parents in collecting child support. The Child Support Enforcement Agency does not require payment of its fees in advance and it is the most cost-efficient way to obtain past due child support by those who are unable to pay the fees required by private attorneys.

Although the local DHR unit may charge you certain costs as well as its legal fees, this remedy may provide needed assistance to you if you cannot afford to retain a private attorney to represent you in seeking or collecting child support payments. A possible disadvantage to using the public Child Support Enforcement Agency is that the bureaucracy has several cases, causing the cases to move slowly.

What role do stock options and IRAs play in child support?

Stock options and Individual Retirement Accounts  (IRAs) can be considered income for calculating child support amounts.

Who can make a claim for attorney’s fees in a child support case?

A parent who has custody of a child may be able to make a claim for attorney’s fees if certain conditions are met: (1) the attorney’s fees are reasonable; (2) the case is only for child support; (3) the parent acts in good faith and is unable to pay the expenses of the lawsuit; and (4) the parent ordered to pay the support declines to comply with the order, which is satisfactory at the time the lawsuit is initiated.  To determine whether a parent has refused to provide support, the court takes a few considerations into account: (1) reasonable living expenses of the parent with custody; (2) past and present expenses of the child; (3) 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.

Is it necessary to have a hearing to decide child support?

No, a hearing is not necessary for a determination of child support to be made. Child support can be decided by: (1) written agreement by the parents; or (2) court order. Without a written agreement, a parent cannot rely on the facts and circumstances that predetermined child support payments to be made by the parent without custody (non-custodial parent). Additionally, the court can enforce a child support obligation if such predeterminations are not made.

Either party in a child support case is permitted to request a child support hearing if they cannot agree on a certain amount when: (1) the combined total income of the parties exceeds $180,000 per year, or (2) 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: (1) the income and expenses of the parties; (2) the reasonable needs of the minor child; (3) the ability of each parent to pay child support; and (4) 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.

 

 

 

 

 

 

I need help!

Resources

There are some common resources that apply to most divorces. This is a good place to start.

Let us help you take the next step

The law offices of Dustin McCrary are here to help guide you through the complex process of divorce in North Carolina.