If you have children who are not with at least 50% of the time, you will likely be obligated to pay child support to the other parent. It is not uncommon to be concerned about the amount of your child support obligation, to seek to modify your child support obligation due to changes in employment, income, and other factors.
Are you unsure about how ancillary items like health insurance payments, private schooling tuition, day care, and summer camp figure into your child support obligation?
Is the other parent in your child support case demanding an amount you feel is excessive or unfair?
This overview, while not exhaustive, can help you in making decisions about your child support case. If you still have questions or are unsure about child support after reviewing this, speak with an attorney to guide you through the process.
How Is Child Support Determined in North Carolina
In the majority of cases Child Support is determined and settled on based on the North Carolina Child Support Guidelines. The guidelines however, only apply to cases in which the parties combined income is less than $25,000/month.
Under the guidelines your child support is calculated via Child Support Worksheets. Your applicable worksheet is determined based on the number of overnights you have with your child
- Worksheet A (when one parent has 243 or more overnights per year)
- Worksheet B (when either parent has less than 123 overnights per year)
- Worksheet C (split custody, i.e., one parent has primary custody of one child and the other parent has primary custody of the other child)
If you’re looking for an estimate of your child support obligation, the worksheets above link to child support calculators from North Carolina Child Support Enforcement. The information you will need to complete the worksheets and get an estimated obligation include:
- Number of minor children
- Income information for both parties
- Pre-existing child support payments
- Number of other children
- Health Insurance Premium Costs
- Work Related Child Care Costs (paid by parent due to employment)
- Extraordinary Expenses (reasonable, necessary and in child’s best interest e.g., private or special school).
When the Guidelines Don’t Apply – High Income Cases
The child support guidelines are not applicable if you and the other parent’s income exceeds $25,000 per month. If you’re in this income bracket, unfortunately judges have wide discretion in determining your child support obligation. Specifically, the court should set support in such amounts as to meet the reasonable needs of the child, taking into account factors such as the estates, earnings, conditions and accustomed standard of living of the child and the parties and “other facts of the particular case.” Some attorneys have found it fair to come up with an amount by completing two separate child support worksheets, one up to the max amount allowable and a second to cover the difference.
In summary, if the guidelines don’t apply to your case, if it’s possible to settle your case, you remove a good degree of uncertainty from the calculation of your obligation.
Amicable parties frequently are able to resolve child support along with other divorce related issues in a separation agreement. One advantage of including child support in a separation agreement is that a court is prohibited from ordering retroactive child support in an amount that exceeds the agreement amount, a provision that clearly encourages out of court settlement. Parties can also agree to pay child support for a longer period of time, which allows parents to provide for assistance with college expenses.
It should be noted however that you cannot waive your right to child support or make it non-modifiable via a separation agreement. Furthermore, if a party refuses to pay child support as agreed, contempt is not an option for enforcement of an unincorporated agreement.
Simple child support cases usually include two parents with 100% salaried W2 income. Rest assured that many child support cases don’t come in nicely wrapped gift boxes. Many involve varied and complicated forms of income, which parties and even some attorneys are unsure as to whether the income should be included on a worksheet. Some examples that have been determined to be income for the purposes of child support include:
- Gross income, salaries, wages, commissions, bonuses, dividends, severance, retirement, trusts, capital gains, workers comp, unemployment, gifts, prizes, alimony.
- Benefit of rent free residence is gross income (Hinshaw v. Kuntz)
- Car and house payments made by others (Burnett v. Wheeler)
- Gross receipts minus ordinary and necessary expenses required for self-employment business. (self-employed spouses)
- Expense reimbursements or in-kind payments
- Irregular income or one-time basis is averaged or prorated
Some examples of specifically excluded income:
- Adoption assistance benefits
- Public assistance
- Other CS payments for another child
- Employer contributions towards SS and Medicare Amounts paid by employer directly to a third party and not withheld
Has the other parent in your child support case changed jobs, stopped working, or reduced their hours conveniently after a child support order has been entered? Has the other parent been unemployed and you have reason to believe they aren’t seeking or are not accepting gainful employment opportunities? If these factors apply, a court may calculate child support based on an imputed income.
In order to impute income, a court must find a willful suppression in a bad faith attempt to avoid CS obligation. Factors which can support this finding include:
- Failing to exercise a reasonable capacity to earn
- Deliberately avoiding financial responsibilities
- Acting in deliberate disregard for support obligations
- Refusing to seek or to accept gainful employment
- Willfully refusing to secure or take a job
- Deliberately not applying himself to his business
- Intentionally depressing his income to an artificial low
- Intentionally leaving his business to go into another business
Child support orders are enforced through contempt, primarily civil contempt. The punishment for civil contempt is imprisonment until the order is complied with. Often judges will give an extended deadline to come into compliance with a court order, assuming it’s found that the violation of the order is willful. However, be aware that it is within a judge’s discretion to order imprisonment on the contempt court date. You are eligible for a court appointed attorney to assist you in the defense of a contempt motion. To find out more about contempt check out our primer on Enforcement of Court Orders.
If you have a children that are not in your custody the majority of the time and you haven’t been paying child support to the other parent, you are at risk of a retroactive child support order. A court can order retroactive support for a period prior to the filing of a child support action. The amount of a retroactive obligation is determined by calculating the amount that would have been required under the guidelines or by ordering that a fair share of actual expenditures be paid.
It is beneficial for an obligor to make child support payments if possible even if no order exists to minimize retroactive obligation amounts.
Child support can be ordered until child turns 18 or graduates from high school until 20 if they are making progress. Remember however that the duration of child support can be extended by contract (e.g., separation agreement or voluntary support agreement)
We hope that this guide helps remove some of the guesswork behind North Carolina Child Support. Take advantage of the worksheets to come up with a reasonable estimate of your child support obligation or the obligation of the other parent. If you need assistance pursuing or defending a child support claim, motion to show cause / motion for contempt or a motion to modify child support, contact us today.
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