Child support is a certain amount of money paid by the non-custodial parent to the custodial parent each month to support the needs of the child(ren). North Carolina General Statute § 50-13.7(a) authorizes a modification of child support upon a motion in the cause by an interested party and a showing of changed circumstances.
Child support provisions of a separation agreement that has been incorporated into a divorce decree or other court order can also be modified pursuant to the statute. However, the statute does not apply to child support obligations that are included in an unincorporated separation agreement or property settlement agreement. In that situation, the parent seeking support would have to file a complaint for child support but the court must apply a rebuttable presumption that the support amount agreed upon is reasonable.
In North Carolina, the amount of child support is based on a set formula in accordance with the NC Child Support Guidelines. The Guidelines determine the amount of child support by considering three things: (1) gross monthly income of both parents, (2) the custody schedule, and (3) the number of kids. Other additional factors such as health insurance, child-care costs, and other “extraordinary” expenses will affect child support as well. When the parents combined income exceeds the guidelines for support, child support is determined based on the reasonable needs of the child. As of 2019, guideline child support applied to parents with combined incomes less than $30,000 a month.
Grounds for Modification of Child Support
Similar to the modification of custody, modifying child support is a 2-step process.
First, the judge must determine whether there has been a substantial change in circumstances since the existing child support order was entered. If child support was determined in a separation agreement, the relevant date is when the separation agreement was incorporated into the divorce judgment. Thus, if the parties entered into a separation agreement 6 months before their divorce was finalized, the change in circumstances must have occurred AFTER the divorce judgment and subsequent incorporation.
If the court finds there has been a substantial change in circumstances, the judge will determine the amount, scope, and duration of the obligation based on the Guidelines (unless there are sufficient grounds to deviate from the Guidelines).
Substantial Change in Circumstances for Child Support
Loss of Employment
People commonly seek to modify a child support order when the person paying child support losses a job. If the non-custodial parent has lost his/her job due to the current economic situation, he/she can apply to modify child support. The rationale is that since the income has gone down (or is not there), it is reasonable grounds for the court to grant a downward modification of support.
However, it is necessary to show that the loss of employment has resulted due to circumstances beyond the individual’s control. In other words, the parent must show that the decrease in income was in good faith. The court also wants to know that efforts have been made to seek alternative employment, but which have been unsuccessful.
Support order is 3 years old and 15% deviation
When a child support order is more than 3 years old, and there is 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 based on the parents’ current incomes, the court presumes that there is a substantial change in circumstances warranting modification.
A significant increase or decrease in the needs of the child
A significant increase could be increases in educational expenses, travel expenses for visitation as a result of relocation, etc. When this is the basis of a parent’s motion to modify, the parent has the burden of proving the amount of the child’s needs at the time the existing order was entered and at the time the motion for modification was filed or heard.
Voluntary decrease in income and the child’s financial needs
Even if the decrease in income was voluntary, it’s possible that the court will still modify the child support obligation. However, the decrease in income must have occurred in good faith and the parent has to show a change in the child’s financial needs.
Situations where the court will not modify child support:
- A substantial voluntary decrease in the income of either parent, standing alone
- A substantial increase in the obligor’s income, standing alone
- Chapter 11 petition for bankruptcy
- An increase in the parent’s financial responsibility for children other than the child for whom support is being determined (example: father remarries and has a child with his new wife)
Seek Legal Advice Early
In cases where both parties are unable to mutually agree on child support, the amount is determined by the court. In such a situation, the non-custodial parent is legally obligated to keep making the child support payments on time. If for any reason, you find yourself unable to meet your payment commitments, it is best to seek legal advice early and file a petition for downward modification. Otherwise, you risk facing contempt of court and paying for the other parent’s attorney fees. Do not accept a verbal agreement from the child’s parent that you do not have to pay support or you can pay reduced amount of support. Only a court can alter a child support order.