Child Support Lawyers in Western North Carolina
Representation for Families in Asheville, Hendersonville and all of Western
Establishing and modifying child support is one of the most frequently
addressed matters in family law cases. An award of child support must
be determined in every single case involving a minor child of the parties.
Parties in a divorce cannot negotiate away the child’s right to
support, and an award of support must be approved by a court.
There have been many changes in the law surrounding child support in the
past several decades. As recently as 1981, the duty to support a minor
child fell solely on the Father, and the amount of support could be tied
to the conduct of the parties and the determination of the reasonable
needs of the child in each individual case. Today, both Husband and Wife
(or any other legal caretaker of the minor child) have a responsibility
to support the minor child. The conduct of the parties is not a factor
in child support (as it is in alimony), the application of child support
is gender neutral and established
child support guidelines are typically used to determine the appropriate amount of support.
Overview of Child Support
Section 50-13.4 of the North Carolina Statutes, any parent or person having custody of a minor child can bring an action
for child support. The mother and father of the child are primarily responsible
for the payment of child support. In some cases, another person, agency,
organization or institution may be secondarily liable for child support.
In the vast majority of cases, the issue of child support is between two
parents of a minor child. Whether custody is joint, shared, exclusive
or otherwise, the issue of child support is applicable. To set child support
in most cases, the North Carolina
child support guidelines are used. The guidelines use a predetermined formula to set the amount
of child support to be paid. To set the child support amount, this formula
factors in the income of each parent and the number of overnights the
child has with each parent. The payment of insurance, child care (necessary
for work) and limited other expense are typically included in this calculation
and, as a result, those expenses are divided pro-rata by the parties based
The child support worksheets can be found at the
North Carolina Department of Health and Human Services website. These worksheets can be filled out by the parties, if the party has enough
information to complete the worksheet accurately. This includes the monthly
gross income of both parties, any pre-existing child support payments
paid by either party, work-related child care costs, health insurance
premiums and any extraordinary expenses for the minor child or children.
Also, in cases of shared custody or split custody (discussed below), it
also includes the total number of overnights the child spends with each parent.
As with many other area of family law, this process can appear to be very
easy: Simply put in all the required figures and you get a child support
amount. Unfortunately, there are many nuances to the determination of
child support that can make calculating a correct figure very difficult.
For example, if one party has a variable source of income, or has a single
member LLC which allows him or her to pay personal expenses out of a work
account (and thus claim a reduced income). Also, a parent may have periods
of unemployment, either voluntary or involuntary. Often people in sales
have sporadic but significant bonuses or commissions. Finally, many people
have jobs wherein some, if not all, of their income is in cash, which
can make determining their income very difficult. If you have a question
about child support, make an appointment to speak to one of our
family law attorneys. We can go over all the specific issues in your case and make sure we
get an appropriate child support amount set in your case.
Below is a more in-depth discussion of some of the issues involved in the
setting of child support in Asheville, Hendersonville, Waynesville and
the rest of Western North Carolina. To get more information on any of
the topics on this website or any other question you have about family
contact one of our experienced family law attorneys.
Sometimes, a long period of time may pass before child support is formally
established. In these cases, the court is able to make an award of retroactive
child support. There are essentially three types of retroactive child support:
- Child support awarded for the period of time prior to the time a party
files a complaint.
- Child support awarded that constitutes a retroactive increase in the child
support amount previously set by a final child support order or agreement
of the parties.
- Child support awarded from the time a party files a complaint for child
support to the date of trial is termed prospective child support.
North Carolina case law has traditionally followed the rule that the amount
of the retroactive child support awarded must be based upon the amount
of support actually expended by the custodial party that represents the
supporting party's share of support, even if guideline support is not used.
One very common mistake made by individuals not represented by an attorney
is to attempt to change a child support payment via an unsigned agreement
of the parties. There are numerous examples of parties agreeing to modify
child support, but then failing to formally make that change with a signed,
notarized agreement or order of the court. Such modifications are invalid
and cannot be enforced. This can lead to a harsh result if one party pays
a reduced amount for a long period of time and then the other party demands
the original amount going back to the date of the agreed upon change.
Attorney’s Fees in Child Support Matters
There is no independent statute for the recovery of attorney’s fees
in a child support action. The standard for attorney’s fees in child
support matters is the same as in child custody matters, which is governed by
Section 50-13.6, North Carolina Statutes. That statute states, in relevant part:
“In an action or proceeding for the custody or support, or both,
(including modification)… the court may in its discretion order
payment of reasonable attorney's fees to an interested party acting
in good faith who has insufficient means to defray the expense of the
Thus, to receive attorney’s fees, a party must act in good faith
and not have enough money to pay for the action. However, the statute
includes an additional provision when it comes to child support cases
“Before ordering payment of a fee in a support action, the court
must find as a fact that 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 or proceeding; provided however,
should the court find as a fact that the supporting party has initiated
a frivolous action or proceeding the court may order payment of reasonable
attorney's fees to an interested party as deemed appropriate under
So not only does the party receiving support have to act in good faith
and not have enough money to pay for the action, the court must also find
that the person being ordered to pay has refused to provide adequate support
before or at the time of the action for support.
An Experienced Attorney Can Help
Child support matters are one area where people most frequently forego
a lawyer proceed pro-se. This is often a very serious and expensive mistake.
Difficulties in determining income and deductions from income, errors
in the calculation of overnights, misapplication of child care expenses
or health insurance expenses or other simple and common errors can have
a big impact on the final child support figure.
Small Errors, Big Impacts: When establishing support for a two (2) year old child, a $20 mistake in
the monthly calculation results in an error that could cost either party
more than four-thousand dollars ($4,000) over the course of the child
Common Mistakes: EXAMPLE: Father gets paid every two weeks and his gross pay after allowable
deductions is $5,000 each pay check. The Mother calculates his monthly
income at $10,000 per month, or $120,000 per year. This is incorrect.
The Father gets paid every two weeks, not twice a month. His income is
actually $10,833.33 per month, or $130,000 per year.
By working with one of our experienced family law lawyers, you can create
a custody plan that best works for you and your children. Our attorneys
can explain the various types of plans available and work to help the
parties reach a formal, written agreement. Our attorneys can also explain
many of the common terms used when discussing child custody, such as
physical custody, exclusive custody, joint custody, primary custody, shared
custody and visitation.
Combined, our experienced family law attorneys have run child support calculations
thousands of times. We have seen nearly every variation of possible incomes,
deductions and special circumstances. We know how to properly determine
the parties’ incomes and get a child support figure that is appropriate
in your case.
Contact The Van Winkle Law Firm to learn more.