Child Support

North Carolina law requires that both parents support their children until they are 18 or complete high school, whichever occurs later (note, though, that a child support obligation will cease when a child turns 20, even if he or she is still in high school). If the child is still in high school after the age of 18, he or she must be making “satisfactory academic progress towards graduation” for child support to continue.

Like custody, child support terms may settled in a separation agreement or support agreement, or parties may put the terms of their child support settlement in a consent order that is then signed by a judge and becomes an order of the court. Agreements and order vary slightly in enforceability and modifiability and it is a good idea to discuss the pros and cons of each with a lawyer. If the parties are unable to agree on child support, then it will be determined by a judge after a trial.

Also like custody, a child support order or agreement may be temporary or permanent. The idea is to be able to get support flowing from one party to the other sooner rather than later in a temporary order or agreement, without the parties being “locked into” a permanent number if custody or other things change as the case progresses.

The North Carolina Child Support Guidelines establish each parent’s responsibility for child support based on the following: (1) the amount of time the children spend with each parent; (2) each parent’s gross monthly income; (3) child support obligations for other children; (4) medical and dental insurance premiums; (5) work-related childcare expenses; and (6) other extraordinary expenses.

The Guidelines apply as a rebuttable presumption in all cases where the parents earn a combined gross income of $30,000 per month or less ($360,000 per year). The Guidelines do not apply to parents whose combined gross income is higher than $30,000 per month; nor do they apply to stepparents, grandparents, and other third parties who have custody. Where the Guidelines do not apply, courts calculate child support the way they do in high income and deviation cases (addressed below).

There are three Worksheets used to determine the Guidelines child support amount. Worksheet A applies where one parent has primary custody of all the parties’ children (or, put another way, where one parent has 234 overnights or more with each child). Worksheet B applies where parents share custody of at least one of their children (in other words, each parent has at least 123 overnights with at least one of their children) and the parties shared expenses for that child. If parents share custody, but one parent pays all the expenses, that may warrant the court using Worksheet A. Finally, Worksheet C applies in split custody situations where each parent has primary of at least one child (think “Parent Trap”). Worksheet C is rarely used.

People often believe that if they have 50/50 custody, neither will owe child support to the other. That is only true if the parties make a substantially similar income or the parties agree that neither will pay the other child support.

The obligation for child support begins when the parties separate from one another. If you have been separated for some time without support being established, you can seek retroactive support going back up to three years or date of separation (whichever is most recent). Custody need not be established by order or agreement for child support to be established. Child support is not tax deductible to the party paying child support, and it is not income to the party receiving it.

If you have all the information to input into the worksheets (income, custody time, etc.), you can calculate Guidelines child support online by clicking here.

High Income Cases

As discussed above, the Guidelines do not apply to parents whose combined gross income is higher than $30,000 per month. This is not the same as the court “deviating” from the Guidelines. They simply do not apply. Rather, a court will determine child support for a high income family by considering the reasonable needs of the child for health, education, & maintenance, having due regard to estates, earnings, conditions and standard of living of child and parties, child care and homemaker contributions of parties, and other relevant facts. High income cases require detailed disclosures of the income and expenses of each party and the expenses of the children to allow the court to determine what the reasonable needs of the children are in each home, and therefore how to apportion the resources from each home in the form of child support.

Deviation from Guidelines

The Court is required to use the Guidelines unless the Court finds after a hearing that “application of the Guidelines would not meet, or would exceed, the reasonable needs of the child considering the relative ability of each parent to provide support, or would otherwise be unjust or inappropriate.” Either party may make a motion to deviate from the Guidelines, or the court can order a deviation on its own motion. Similar to high income cases, deviation cases require more disclosures and analysis of actual income and actual expenses to establish “reasonable needs” and “relative ability.”

Child Support Order

In additional to establishing the monthly dollar amount for child support, a child support order or agreement should also address the following:

• Health insurance coverage. If medical insurance is available to a parent through her or his employer at a reasonable cost, that parent should be obligated to cover the minor child/ren under that plan.
• Medical expenses not covered by insurance: both how to split these costs (usually 50/50 or apportioned between the parties based on their incomes), and how to pay/reimburse one another for these costs.
• Extracurricular expenses, Summer Camps, and Tutoring. While these are not specifically addressed by the Guidelines, parties ought to address both how to split these costs (again, usually 50/50 or apportioned between the parties based on their incomes), and how to pay/reimburse one another for these costs if they are able.
• Work-Related Child Care Expenses. These expenses can either be used in the Guidelines calculation of child support, or they may be left off the worksheet and negotiated separately. That may be especially appealing when these expenses vary a lot from month to month. In any event, the order should make clear how these expenses are being treated and who is paying them.
• Extraordinary Expenses. these are addressed in the guidelines, but they are not uniform expenses. sometimes extracurricular expenses, summer camps, and tutoring are considered extraordinary expenses. Certainly tuition for private school can be an extraordinary expense, as can be travel expenses for a child to visit with a parent who lives out of town. Again, these may be reduced to a monthly amount and included in the Worksheet, or left off the Worksheet and addressed separately.
• Tax exception. The Guidelines assume the parent receiving support claims tax exemptions for the children, and under the Guidelines it is a deviation to award the exemption to the other parent. However, parties will often agree to split this cost by each claiming a child or alternating who claims the child/ren every other tax year.

How Child Support is Paid

Child support is usually monthly, but other options available too, such as lump sum, periodic payments (other than monthly), transfer of title to real property, security interest in real property. Child support may be ordered to be paid by wage withholding. Public policy disfavors offsets of child support against other obligations, so that it is pretty standard for orders and agreements to read: “child support shall be paid without any offsets or deductions of any kind.”

Attorneys’ Fees

North Carolina’s child support laws allow for a court to make an award of reasonable attorney’s fees to an interested party acting in good faith who has insufficient means to defray the expense of the suit where the party ordered to furnish support has refused to provide support which is adequate under the circumstances existing at the time of the institution of the action.

While this fee-shifting provision exists in the law, by no means is it guaranteed that the party with fewer resources will be awarded attorneys’ fees, or that the award will be dollar-for-dollar. Many times judges defer the decision about attorneys’ fees until the permanent trial, declining to address this issue before then.

Modification

Child support orders are always modifiable by court, and/or by consent of parties, but such consent must be executed with the same formality as the original agreement. You cannot simply agree to change the child support amount in an email. If your agreement is in a court order, the modification must also be a court order.

A court can modify the child support amount upon a showing of a significant change of circumstances. An income change is often not enough; the change in income must be significant to warrant a change in the child support amount. Birth of a new child cannot be the only basis for modification; a court will not modify based on a parent’s voluntary increase in expenses (new marriage, new child). Under North Carolina law, there is a presumed significant change of circumstances after three (3) years from entry of the initial child support order to the filing of the Motion to Modify, and a difference of 15% or more between the amount of child support payable under the existing order and the amount of child support resulting from application of the Guidelines now.

Termination

The child support obligation terminates when the child reaches the age of 18 and graduates high school (whichever occurs second), when the child becomes emancipated, if the child dies, or if the parent paying or receiving support dies. Once a terminating event occurs, child support automatically terminates (no order or agreement necessary); except if there are multiple children for whom support is being paid and only one child ages out. Then a parent must make a motion for child support as to the one child to be terminated and recalculated as to the remaining children.