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HOW IS CHILD SUPPORT DETERMINED?

Questions.Answered

What do I need to know?

Child Support may just cause you to nod off with all the guidelines and paperwork and statutes and legal jargon. And, we haven’t even mentioned those pesky numbers. It can feel like tax time all over again! We can help you make sense of the paperwork as we guide you through each step.

The first thing to understand is that, most often, parents reach a Child Support agreement with help from North Carolina’s Child Support Guidelines. This document determines appropriate Child Support for families with combined incomes less than $300,000 each year. And, no…you don’t have to read the entire document and take a test on it. We’re here to explain how this document applies to you in your situation with your Child Support needs.

North Carolina also offers a Child Support calculator to help you determine child support due under the guidelines. You can print a PDF form of each worksheet which may be required to file in court. These calculations derive from each parent’s income coupled with additional monetary amounts such as IRAs and stock options, the number of children, the amount of time each parent has custody, expenses related to the child’s care or education, and the number of other children for whom each parent may be responsible. On rare occasions, grandparents may be expected to pay Child Support.

A separation agreement offers one option for parents to settle their Child Support out of a court setting. We are sure you have a bunch of questions such as:

  • Who may request Child Support?
  • Who holds the responsibility for payment of Child Support?
  • How soon can a Child Support case be heard if a court hearing is necessary?

Once Child Support has been set, the parties must pay the Support as determined through the process. If they do not, the court may hold that person in contempt for nonpayment of the Child Support. We will explain more on that later.

Child Support remains in effect until a child’s eighteenth birthday. Exceptions include if the child and no longer requires support or has not yet completed high school. Child Support continues until graduation unless the child drops out, makes no progress toward completion of school, or turns 20 years old. The other exception to the age limit applies to dependents who require additional support due to physical or mental deficits.

How do I ask for child support?

In North Carolina, you can resolve Child Support in a separation agreement (contract), or you can file in Court and ask the Court to enter an order. Child Support may be filed as a civil action, and need not be combined with any other claim.

Your claim for Child Support should be filed in the county where the parent or the child resides or where the child is physically present.

As previously mentioned, Child Support may be settled outside of court through a separation agreement. If you settle outside Court then you have a lot more flexibility on the terms of the agreement.

How is income determined?

The Guidelines allow for times when one of the parents is voluntarily unemployed or underemployed. Imputed income should be included as a result. However, this does not apply when the custodial parent cares for a child under three years of age or for a child who is physically or mentally impaired.

Each parent must provide verification for all income. The Court determines the appropriate Child Support award based on both parents’ incomes at the time of the decision; however, potential income may be a consideration, too.

Other details which may affect the Court’s decision and are included in the Child Support calculation include:

  • A parent’s responsibility for the support of another child;
  • Health insurance premium payments for the children;
  • Work-related child care costs; and
  • Extraordinary expenses which may include unusual medical, educational, transportation, or other expenses for the child(ren).

How is support paid?

Most often, Child Support comes in the form of monthly or weekly cash payments. Property transfers are another less common form of Child Support.

Payments may be made directly to the custodial parent from the non-custodial parent or to “any other proper person, agency, organization, or institution, or to the Court for the benefit of the child.” In the Court option, the Clerk of Court would receive payment from the non-custodial parent and forward it on to the custodial parent.

For tax purposes, you should note that Child Support is not taxed to the receptive parent and cannot be claimed as a deduction by the parent paying it. This differs from alimony in that alimony is considered a taxable income for the one receiving it and as a deduction to the payer. However, any alimony specifically related to the child in some way may be both non-deductible and non-taxable. We will work on clarification in these matters.

What is required?

A complaint, counterclaim, or motion for Child Support should contain:

  • The names of all parties involved and their addresses;
  • The names of the children involved; and
  • Sufficient jurisdictional facts to allow North Carolina to exercise jurisdiction over the parties.

Some details that may come into Child Support claim considerations are:

  • The non-custodial parent’s capacity to pay support;
  • The custodial parent’s need to house the child(ren) in the family’s original residence; and
  • Legal fees; the recipient of child support may request attorney’s fees based on the factors below:
  1. Fees are not excessive;
  2. Fees only cover the Child Support action;
  3. This parent cannot afford these expenses; and/or
  4. The non-custodial parent refused to provide adequate support for existing circumstances at the time the claim was made.

In the case of a claim, the Court considers the custodial parent’s reasonable living expenses; the child’s past and current expenses; and, if possible, the amount of previous support from the non-custodial parent. If attorney’s fees factor in to the requests, the Court requires evidence of “the nature and scope of the legal services, the skill and time required, and the relationship between the fees customary in such a case and those requested.”

Local courts determine what paperwork they require and whether one or both parents must complete a financial affidavit of the child’s monthly needed expenses. Parents should bring all documents, including checkbook registers and receipts to court. Some counties may require such an affidavit to be filled out on the date the complaint is filed; others require it a few days prior to the hearing. Also, some counties require recent pay stubs be attached to the affidavit. We can help you determine the exact paperwork you will need to follow your Court’s requirements.

A financial affidavit also determines how much money is appropriated to the custodial parent and how much goes to the child(ren). If the custodial parent is remarried or lives with other third parties, this money cannot be divided out to other members of the household.

What about special circumstances?

In order for a Guideline deviation to be considered by the Court, evidence presented should address both parties’ income as well as expenses, the child’s financial needs, each parent’s ability to pay support, and the reason for requesting this variance. Likewise, the Court must show findings to justify any deviation it declares.

Some examples of evidence supporting the need for a Guideline deviation include:

  • Each person’s standard of living;
  • Necessary expenses that don’t fall into the typical categories;
  • Non-traditional support needs;
  • Special educational needs;
  • Atypical visitation schedule; and/or
  • Other factors that can be proved to alter the amount of support required.

Two types of deviation from the Guidelines are:
Upward Deviation—a higher amount of suggested support, typically in wealthier families (as the Guidelines are written for families with combined incomes of less than $300,000) or with unusual added needs for the child(ren) and
Downward Deviation—a lower amount of suggested support, typically when the custodial parent does not need as much support as suggested or when the non-custodial parent cannot pay the suggested amount.

A deviation from the Guidelines should either be requested during the original pleadings or it must be presented in writing at least 10 days in advance of the hearing on the deviation. Once such a request is placed, the Court must hold a hearing and may choose to deviate from those Guidelines if it deems it appropriate in that particular case.

Parents may reach an agreement for Child Support that is higher than allowed under the guidelines:

  • Private schooling (the Court can consider this if a party requests a deviation);
  • College or other post-high school education costs;
  • Summer camps (work related summer camps are considered in the standard guidelines);
  • Life insurance on the parent paying Child Support for the benefit of the child(ren);
  • Increases in cost of living;
  • Other forms of financial support past age 18; and/or
  • An exchange of the dependency exemption.

If parents include these extra provisions into a consent order, the Court may then enforce them.

Can I change a court order?

The Court may choose to alter Child Support provisions if there is a substantial change in circumstances. These changes may increase or decrease the amount of support, depending on the reason. Some examples of causes for the Court to adjust Support amounts include: a child’s increased needs, the non-custodial parent’s decreased income, both parents’ increased income, and residence changes.

Either parent has the right to request a change up or down. Standards of changes to agreed-upon Child Support depend on the type of agreement in place.

For separation agreements, whoever requests the adjustments needs to simply present the amount of Support required to meet the child’s reasonable needs at the time of the modification hearing. The amount of Support previously agreed to becomes only one of the Court’s considerations in determining the change request.

In order to alter Child Support set forth in a court order, the parent requesting this change holds a larger burden to show proof of “changed circumstances.” A change must be “substantial and material.”

In order to reduce changes in Child Support, the parent who desires to maintain continuity should seek to capture any agreements made through a consent order.

How does custody affect child support?

The Guidelines specify Child Support options for all three Child Custody arrangements. The Court requires different completed worksheets for each. Sole or Primary Custody—when the non-custodial parent has the child fewer than 123 nights a year—requires completion of Worksheet A. Joint or Shared Custody—when the non-custodial parent has the child a minimum of 123 nights each year—requires Worksheet B. This typically results in a lower amount of Child Support than with the first option. And, finally, split custody—for families with multiple children who are split between the parents—requires Worksheet C.

While these Worksheets are designed to be easy to understand and to fill out, correctly inputting the accurate information can be tricky. Gross income, for instance, becomes less straightforward when one parent owns a business or is self-employed. We can guide you through the accurate completion of this information.

What is a child support order?

Once you have been awarded Child Support, we have just started our journey together. Often the Court asks the parent who receives the Support to draft a Child Support Order. This document requires detail in completion and requires legal guidance to ensure the state’s appellate courts do not overturn it. Every aspect of income; estates; special conditions; standards of living; each parents’ contributions; and any other facts, especially any unusual requests which lead to deviations from the Guidelines, must be spelled out carefully.

What if they don’t pay?

Even with a court order or a separation agreement, you may find yourself waiting on a check that doesn’t arrive or that arrives later than it should. In the case of unpaid child support, several criminal options exist to ensure you get the money your child deserves. We can point you in the right direction if you’re in need of this assistance. You should also know that the Uniform Interstate Family Support Act (UIFSA) exists to protect your right to the Child Support ordered by the Court from the other parent, regardless of their state of residence.

How do I find the right assistance?

Sure, Child Support proceedings can be overwhelming; but they don’t have to be with the right partner. We stand with you and want to make this process as simple as possible as you seek to set up the proper financial help for your child. Call us today to setup a consultation, or click here to schedule a consultation online!

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