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An In-Depth Discussion on Child Support
Under the laws of the State of North Carolina, any person or entity with custody of a minor child may seek support for that child from the parents of the child. Typically the situation involves one parent having custody of the child and requesting support from the other parent. However, a non-parent may have custody (i.e. a grandparent or the State) and request the child support. Although a non-parent with custody of a minor child may request and receive support for the child, a parent can not request and receive child support from a non-parent third party unless that third party has assumed the obligation of support in writing. The only exception to this rule is when the parents of the child are minors themselves. In this situation, the grandparents may be responsible for the support of the grandchild until such time as the actual parents have reached the age of majority or are emancipated.
North Carolina's Standard for Child Support
Child support is to be calculated in such amount as to meet certain criteria. These criteria are:
The North Carolina Presumptive Child Support Guidelines
As you can imagine, given the number of child support lawsuits filed each year, hearings where the above standards must be individually proven would clog the court system for years. In addition, child support amounts could vary widely depending on the effectiveness of the attorneys or parties to argue their cases, as well as the leanings of the judge in each case. To avoid these possible issues and provide for uniformity in child support awards, North Carolina typically requires that child support shall be calculated by use of presumptive guidelines and that these guidelines shall apply as a rebuttable presumption in all legal proceedings involving the child support obligation of a parent. The goal of the guidelines is for the child or children to receive the same support from his separated parents as he would if they were still together. Further, the guidelines presume that the parent who receives child support is entitled to and does claim the children for all tax exemption purposes.
Created by the Conference of Chief District Judges for the State of North Carolina, the guidelines use a mathematical formula to arrive at a basic child support obligation which depends upon the combined monthly gross income of the parents and the number of children. For purposes of calculations via the guidelines, gross income is defined as income before deductions for federal or state income taxes, Social Security or Medicare taxes, health insurance premiums, retirement contributions, or other amounts withheld from income.
Definition of Income
What constitutes income for purposes of calculating child support in North Carolina? Income is defined as a parent's actual gross income from any source including but not limited to the following;
In addition, expense reimbursements or in-kind payments (such as use of a company car, free housing, reimbursed meals) received by a parent in the course of employment are counted as income if they are significant and reduce personal living expenses. When income is received on an irregular, non-recurring, or one-time basis, the court may average or prorate the income over a specified period of time or require the parent to pay a percentage of the income equal to the percentage paid from recurring income.
For greater clarity, gross income from self-employment, rent, royalties, proprietorship of a business, or joint ownership of a partnership or closely held corporation has been defined by our State to mean gross receipts minus ordinary and necessary expenses required for self-employment or business operation. The following amounts allowable by the IRS for tax purposes are not allowed as ordinary and necessary business expenses for purposes of determining gross income in child support cases:
In addition, expense reimbursements or in-kind payments (such as use of a company car, free housing, reimbursed meals) received by a parent in the course of self-employment or operation of a business are counted as income if they are significant and reduce personal living expenses.
Child support may be calculated on a parent's potential, rather than actual, income under certain circumstances. The circumstances are:
If the circumstances listed above are in existence, the court will determine potential or imputed income by examining the parent's recent work history, occupational qualifications, prevailing job opportunities and earning levels in the local community. At the minimum, the court will impute no less than the minimum hourly wage for a 40 hour work week. However, income can not be imputed to a parent caring for a child who is under the age of three years and for whom child support is being determined.
Income for purposes of calculating child support does not include benefits received from means-tested public assistance programs, including but not limited to the following:
Responsibility for Other Children
In calculating child support, North Carolina's guidelines allow the parties to take into consideration pre-existing child support obligations for other children not living with the parent as well as responsibility for other children that do reside with the parent. For instance, if a party is already required under an order or out of court agreement to pay $500.00 per month in child support to children from a previous relationship, the amount of that obligation will be used to reduce the parent's gross monthly income for purposes of calculating child support for any other children he has. That is, under this same scenario if the parent's gross monthly income is $3,000.00, his previously ordered obligation of $500.00 will be subtracted from his gross income. The parent will now have only $2,500.00 attributed to him as his monthly adjusted gross income for purposes of calculating child support for any other children. The court will focus on whether the payments are required and are being made. If the parent seeking the credit for the payments is unable to show he is under an order or duly executed agreement requiring him to pay and that he is paying, the court may not give him the credit he seeks.
A parent is also entitled to a reduction of his gross monthly income for the financial responsibility of his natural or adopted children who currently reside with him. A parent's financial responsibility for his adopted or natural children who currently reside with him is:
As an example, assume that Bob and Sarah have two children and then separate and divorce. The children reside with Sarah (regardless of whether there is a custody order or arrangement officially in place). No order or duly executed agreement for child support is put in place between Bob and Sarah. Bob then remarries and has a child with Kim. Bob, Kim and their child live together. When Sarah requests the court to order Bob to pay child support according to the guidelines, Bob may argue his gross monthly income should be reduced by his responsibility for the child he has with Kim. Bob's gross monthly income is $5,000.00 but one-half of the basic child support obligation for his child with Kim is $450.00. As a result, Bob would argue his gross monthly income for purposes of calculating his child support obligation with Sarah is $4,550.00.
Child Care Costs
Once the basic child support obligation has been arrived at, certain adjustments may be made by the Court in order to calculate the final child support obligation. Among these adjustments, the court may consider the child care costs incurred by the parties for the benefit of the children whose support is being calculated. The child care costs must be reasonable, paid by or, will be paid by, a parent due to employment or job search. Typically, the amount of the child care costs is reduced by 25% before being added to the child support equation. The reduction is due to the tax deduction that may be obtained by the parent paying the child care costs. However, in certain circumstances, the reduction is not always applicable because of the reduced income of the parent paying the child care costs or due to the number of the children.
Health Insurance and Health Care Costs
Another figure added to the adjustments is the cost of health (medical or medical and dental) insurance for the children for whom support is being determined. The Court may order either of the parents to obtain and maintain health insurance coverage for a child if it is actually and currently available to the parent at a reasonable cost. Reasonable in cost means it is employment related or other group health insurance, regardless of delivery mechanism. If reasonable costing coverage is not available to either parent at the time the child support is ordered, a court may order the parents to obtain it if and when it does become available at a reasonable cost for the child.
In today's society, the health insurance is typically provided through the employment of one or both of the parents and parents usually obtain and maintain it of their own free will. However, if the insurance coverage is provided free of charge by the employer, the amount is not included as an adjustment. Also, if the policy covers more than just the children, the court tries to determine the actual cost for the children alone. If there is no manner to determine this exact cost, the court may divide the cost of the coverage by the number of persons covered and then multiply that figure by the number of the children. For example, if Bob provides health insurance coverage through his employment at a cost of $300.00 per month and the coverage is for himself and his two children, we would first ask Bob's employer or insurance provider to break out the expenses for the two children versus Bob. If they were unable to do this, we would divide the cost of the coverage ($300.00) by the number of covered participants (3) to provide us with the average cost per participant ($100.00). We would then multiply this cost ($100.00) times the number of children (2) to arrive at the cost of the health insurance coverage for the children ($200.00) on a monthly basis. This amount will now be added to the child support calculation for the children.
When child support is calculated pursuant to the guidelines, the gross monthly incomes of the parties (following any adjustments as described above) are combined. Accordingly, each parent's percentage contribution to this total can be easily obtained. For example, if John's adjusted gross monthly income of $2,500.00 is added to Jennifer's adjusted gross monthly income of $8,500.00, their combined adjusted gross monthly income is $11,000.00. Of this total, John's percentage share is 23% ($2,500.00 divided by $11,000.00) and Jennifer's percentage share is 77% ($8,500.00 divided by $11,000.00). This percentage share may be important when uninsured health expenses are apportioned by the court. The court may order that uninsured medical and dental expenses in excess of $250.00 per calendar year or other uninsured health care costs be paid by the parents in proportion to their respective incomes. Although it is not explicitly stated in the law, a common practice of the courts is to assume the custodial parent is responsible for the first $250.00 of these costs on an annual basis. These costs are defined as including reasonable and necessary costs related to orthodontia, dental care, asthma treatments, physical therapy, treatment of chronic health problems, and counseling or psychiatric therapy for diagnosed mental disorders. Thus, utilizing the example above, if we assume the children of the parties live with John, John would be responsible for the first $250.00 of uninsured health expense in the calendar year. After the first $250.00, he would be responsible for 23% of the expense and Jennifer would be responsible for 77% of the expense.
Other Extraordinary Expenses
The court may order other extraordinary child-related expenses of the minor children included as adjustments to the child support calculations on a case by case basis. Included in such expenses contemplated by our laws are:
In order for the expenses to be included in the calculations, the court must determine the expenses are reasonable, necessary, and in the child's best interests.
Worksheets A, B, and C
Once the adjusted gross incomes and all adjustment figures have been determined, the appropriate worksheet for the calculation must be chosen. The worksheets come in three forms: Worksheet A, Worksheet B, and Worksheet C. The Worksheet A is entitled "Child Support Obligation Sole Custody", Worksheet B is entitled "Joint or Shared Physical Custody", and Worksheet C is entitled "Child Support Obligation Split Custody." Although each of these worksheets is defined in its title, further explanation is required to understand which one is appropriate in varying circumstances. Worksheet A should be used in situations where the child remains primarily with one parent (or third party) over the other parent. Primary physical custody for purposes of this worksheet means that party has the child for at least 242 overnights during the calendar year. Put another way, the non-custodial parent has the child for less than 123 overnight visits per calendar year. This worksheet is the most commonly used and applies regardless of the legal custody arrangements of the parties. That is, even if the parties agree to share joint legal custody, determination of the appropriate worksheet is governed by the physical custody arrangement.
Worksheet B should be used when the parents share custody of all of the children for whom support is being determined or when one parent has primary physical custody of one or more of the children and the parents share custody of another child. For purposes of this worksheet, parents share custody if each has the child visit overnight at least 123 times per calendar year and each parent assumes financial responsibility for the child's expenses during the time the child is with him or her. It is important to remember that both of these requirements must be met in order for the worksheet B to apply. Many parents attempt to reduce their child support obligation by fighting for more overnight visits with their child but refuse to share in the expenses of the child. This worksheet does typically result in a lower cash child support amount to be paid but, overall, may result in more money being paid when the actual expenditures of the child are included. Children do not stop having needs after the child support check has been spent. These needs must be addressed and worksheet B assumes both parents will face these ongoing responsibilities.
Finally, worksheet C is appropriate for use when primary physical custody of two or more children is split between the parents. For purposes of this worksheet, split custody is defined as cases in which one parent has primary custody of at least one of the children for whom support is being determined and the other parent has primary custody of the other child or children. Again, the term primary physical custody is determined by examining the amount of overnight visits which occur. The requisite number remains at 123 or more.
Although the guidelines are to be presumptively used in calculating child support, the presumption is rebuttable. A party may seek a deviation by the court from the guidelines. To accomplish this deviation, a party must prove certain things to the court. First, the party must provide evidence regarding the reasonable needs of the child for support and the relative ability of each parent to provide support. Next, the party must convince the court by the greater weight of the evidence that application of the guidelines would:
If the court is convinced that a deviation from the guidelines is appropriate, it must make written findings:
Termination of Obligation
Payments for child support shall terminate upon the earliest of the following conditions:
Although the above conditions allow for a court to terminate the support obligation, an order directing payment of child support remains in place until the court actually enters an order to that effect. Therefore, the paying party can not simply stop paying child support on his own. Rather, if he is paying pursuant to an order of the court, he should file a motion requesting the court to terminate the child support obligation and cite the appropriate reason for the termination. Failure to take these steps could result in the party who stops payment being held in contempt of court.
How the Support is Paid
Typically, child support is paid in periodic installments. These payments are to be made by the first of each month and are paid month by month. Further, there is a presumption that the support payments shall be made through a wage-withholding order, if the child support is memorialized in a court order. The wage withholding order provides for the support amount to be taken directly from the wages of the person paying the support. In addition, child support payments are often paid through a centralized collection agency for the state. All payments which go to the agency are credited against the paying party's account and then forwarded to the party entitled to receive the child support. Although the involvement of the agency may delay payment by a few days, there are benefits to the parties by using this agency. Both parties have a third party that keeps track of the payments made and owed. If an arrearage of support accumulates, the agency will provide the clerk of the county where the action arose that the payment is late and then a notice of delinquency will be sent to the party ordered to pay the support.
Child support may also be paid in lump sum, by transfer of title or possession of personal property of any interest therein, or a security interest in or possession of real property. Use of these types of payments is rare but useful when the paying party refuses or is unable to pay periodically. The party entitled to the child support may be granted possession of a bank account, an automobile, or land and houses as payment of the support obligation.
The party entitled to the support has a number of ways to ensure payment is made. In addition to the centralized collection agency notifying the clerk of court, the party may directly seek assistance through the courts via a motion for contempt. Further, the party entitled to the child support may seek the assistance of a state run agency such as the Child Support Enforcement Agency. Although the use of the Child Support Enforcement Agency is economically appealing, they are frequently overworked and underfunded. As a result, you may have to be patient for them to provide you with assistance.
Other remedies available for non-payment include orders of the court requiring the owing party to secure the amount owed by a bond, mortgage, or deed of trust. The court may also require the execution of an assignment of wages, salary, or other income due or to be paid. An order for arrest and bail is also available to the party seeking enforcement of the child support order. Finally, the courts may utilize the remedies of attachment and garnishment, injunction, and appointment of receivers. Ultimately, the court has placed the payment of child support as the highest priority and will enable the owed party almost any means to secure payment of both ongoing and owed child support. The court will even allow a party to seek payment of child support for the period up to three years prior to the filing of an action for child support. In the situation of retroactive child support, the guidelines do not apply. Instead, the party seeking the support must prove the actual necessary expenditures of the child during the period in question as well as the other party's responsibility and ability to pay for same.
Modification of the Child Support Obligation
Our statute gives us direction on what is required to modify a child support order. Such an order may be modified or vacated at any time upon a request of the court and a showing of changed circumstances. However, the change in circumstances must be substantial. It is not usually enough that a parent's income has increased for the modification to be granted. The party must also show, in addition to the increase in the income of the parent, that the needs of the child have also changed to a point that it is a substantial change of circumstances.
The commentary to the guidelines also provides for modification under certain circumstances. If a child support order is three years old or older and there is a difference of 15% or more between the amount of the support in the existing order and the amount of child support which would be calculated under the current conditions, this is presumed to be a showing of a substantial change of circumstances warranting modification. Again, this only applies to orders which are three years old or older.
Many times parties will set child support in an out of court agreement. In order to modify the support amount, a party does not file a motion to modify since there was no order to modify. Instead, the parties would file a lawsuit asking the court to set child support for the first time. There is some debate under the case law currently in place in this State that a party must show a court that the amount set in the agreement is inappropriate before the court has the power to set a new amount. However, this burden appears to be significantly less taxing than to show a substantial change of circumstances. When, and if, the court sets the child support the order of the court is now controlling and the parties will be entitled to utilize all the remedies available through the courts.
A party may seek attorney's fees and reimbursement of costs when seeking both the establishment of a child support obligation as well as the modification or vacation of the obligation. In these situations, the court in its discretion may order payment of attorney's fees. For a party to be entitled to receive the reimbursement;
The court is also authorized to order the party making the claim for support to reimburse the reasonable attorney's fees of the other party if it finds the suit was frivolous.
All child support lawsuits start with the filing of a civil summons and a complaint or by making a motion in an already existing lawsuit. In child support matters, the appropriate place to file a request for payment of support is the state where the supporting party resides. If a suit is filed for custody and child support, it is appropriate to bring it wherever the child or a parent is present.
The civil summons is simply a form designed to prove the defendant in the lawsuit has been properly served with the lawsuit. It is important to prove the defendant is aware of the child support lawsuit. Without this proof, the court will not grant the child support claim. Public policy in this state demands that parties be aware of lawsuits filed against them and provided an opportunity to respond before final rulings are made by a court of law. In child support cases, a North Carolina court may exercise personal jurisdiction over a defendant so long as the defendant is properly served with a summons and complaint and one of the following grounds for exercising personal jurisdiction has been met;
The complaint is the original document filed with the court which sets forth the claims for which relief are sought from the court. In a child support action, the complaint will list the names of the parties, the names and ages of the children involved, and the need for an order of support for the children. When a motion seeking child support is filed with the court, the allegations are the same as with a complaint. A motion for modification of the support may also be filed. This motion will address the history of the parties and the order in place setting the child support obligation as well as the facts which constitute a substantial change of circumstances warranting the court to modify the obligation. The motions, like the complaint, must also be served upon the opposing party but the service requirements are not as rigorous.
The civil summons and the complaint are taken by the complaining party to the office of the clerk of the civil court. These documents are filed with the clerk and a filing fee is paid. Once filed and the fee paid, the lawsuit has been initiated and a file number will be given to the lawsuit. This number identifies the lawsuit and will be used from this point forward. It is the responsibility of the party filing the lawsuit to provide a copy of the lawsuit to the defendant and later provide proof of that service to the clerk of court. It is not the responsibility of the clerk or anyone else to have the complaint and civil summons served. Failure to complete this task will prevent the suit from proceeding further. Service may be accomplished a number of ways under the law, including certified mail return receipt requested, personal delivery by sheriff's deputy or process server, and, as a last resort, service via publication. Before attempting any of these methods, you should review the law thoroughly or consult with an experienced family law attorney in the area where you plan to file the lawsuit.
When filing a motion for child support or modification of child support, it is presumed that the civil summons and complaint seeking other claims has been filed and properly served on the opposing party. With the motion, service is accomplished by timely providing a copy of the motion to the opposing party directly or, if the opposing party is represented, through his counsel of record. Service may be accomplished via regular mail. In addition, many counties require the parties to file with the court and provide to each other proof of their income. This may be accomplished by an affidavit with supporting documents attached. If the parties are seeking a deviation from the guidelines, notice of the intent to seek the deviation must be filed and served on the opposing party at least ten (10) days prior to the hearing. In addition, with a deviation request, the parties may be required to provide each other with more detailed information regarding the needs of the children and the parties.
When seeking the child support through a complaint, the defendant is entitled to no less than thirty (30) days to respond to the lawsuit before further steps can be taken. Once sufficient time has passed from the valid service of the lawsuit, the party who initiated the lawsuit requests the judge to review the claims made and grant appropriate relief. By appropriate relief, we mean that a judgment setting the child support is entered. When relief is sought via a motion, the opposing party does not have a set time period within which to respond. Some would argue that no reply is actually required under our laws. In either case, the request for relief is typically determined by a court at a hearing. The notice of the hearing must be provided to the opposing party in a timely manner and no less than ten (10) days before the actual hearing.
At the hearing, the initiating party may be expected to provide sworn testimony. The testimony may consist of simply reciting the facts set forth in the original complaint or motion or it may be as involved as answering questions from the judge or the opposing party. The parties may provide evidence in the form of documents and testimony from third parties. Upon the conclusion of the presentation of the evidence, the judge will make a ruling or enter a verdict. That ruling will set the amount of child support to be paid by the parties. This written ruling can be used by both parties to prove the obligation to pay child support as of a specific date.
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No-fault grounds for divorce in North Carolina are living separate and apart for one year or living separate and apart for three consecutive years, without cohabitation, by reason of the incurable insanity of one of them.
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