Representation for Families in Asheville, Hendersonville & Surrounding Areas
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
Pursuant to 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 on income.
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 law, please 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 suit.”
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 specifically:
“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 the circumstances.”
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 support award.
- 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.