Can I Modify My Child Support Order?
Divorce can be a long, drawn-out process that can seem never-ending when you are in the midst of it. However, many individuals emerge from divorce less-than-satisfied with the court’s final decision, including the child support order. Alternatively, the parties may have believed the amount was fair at the time of the order, but over time, as circumstances changed and incomes of parents have risen or fallen with the economy, one parent or the other may no longer feel the child support ordered years ago adequately supports the child or children. In North Carolina, the only way to legally alter a child support order is to petition the court for a modification of child support.
If you are interested in petitioning to modify the child support order, there are several important things to know. North Carolina courts are considerably deferential to the initial trial judge’s determination on property issues in divorce cases as division of marital property in equitable distribution are a one-time occurrence. However, North Carolina courts adhere to the nearly-universal “best interests of the child” standard when it comes to ruling on issues of child support and custody. With regards to child support, especially when a child or children are young at the time of a divorce, courts have an obligation to ensure that they are adequately supported by both parents throughout their childhood. Thus, when the financial circumstances of parents change, a modification of child support may be warranted.
North Carolina courts adhere to the nearly-universal “best interests of the child” standard when it comes to ruling on issues of child support and custody. Modification of child support involves a two-step process. First, the court must determine whether or not there has been a substantial change of circumstances. Only if the court finds that there has been a substantial change of circumstances will it proceed to calculate the applicable amount of support pursuant to the guidelines.Child Support Modification
Initial Child Support Order
There are three different child support guideline worksheets applicable in most child custody situations. Worksheet A applies where one parent has “primary” custody, which, in North Carolina means that one parent (the “primary custodial parent”) has 243 overnights or more per child per year, and the other parent (the “non-custodial parent”) has less than 123 overnights with each child per year.
Worksheet B applies when there is not such a clear majority of time with one parent, and the parent with the least amount of time with the child or children still has at least 123 overnights with each child per year. This situation is referred to as “joint custody” or “shared custody.” There is no “custodial” or “non-custodial” parent.
Worksheet C applies where there are two or more children, and each parent has “primary” custody of at least one child. This means that each parent has 243 overnights or more for at least one child.
Once the appropriate worksheet is determined, the worksheet is filled in with all pertinent financial information including each parent’s income, the children’s living arrangements, and expenses related to the child or children for daycare and medical insurance. The court can deviate from the amount set by the guidelines, but must make findings of fact that deviating from the guidelines would still meet but not exceed the child’s reasonable needs. We have provided a child support calculator on our website that can be used to see how these different variables can determine the final monthly payment amount. That child support calculator can be found here:
Either parent may file to modify a judgment on child support if there have been material and significant changes in circumstances since the time of the original order. Typically the parent receiving child support moves for an upward modification of the child support order by citing an increase in the cost of expenses relating to the child or children, or that the parent paying child support has received an increase in his or her income that would constitute a significant change of circumstances. Likewise, a parent paying child support typically files for a downward modification of the child support order if he or she is unable to work because of bad health or disability, or if he or she becomes involuntarily unemployed. As discussed above, the court must determine first that there has been a substantial change of circumstances from the entry of the child support order the parent is seeking to modify. Only if the judge finds there is a substantial change of circumstances will the court perform a new guideline calculation taking into account each side’s financial situation, new child care expenses, or any other pertinent information to the child support determination in making either determination.
Additionally, after three (3) years have passed from the entry of a child support order, if there is a 15 percent difference between the amount of the previous order for child support and the amount set by the guidelines pursuant to a new calculation at that time, a presumption arises that there has been a sufficiently substantial change in circumstances to warrant a modification. However, this adjustment is not automatic and the party desiring a modification will still have to petition the court to modify the child support amount.Child Support Termination
There are circumstances where child support automatically terminates and the parent paying child support does not have to officially petition the court to modify or terminate his or her child support obligation. For example, if parents have only one child and that child reaches the age of 18, or graduates high school, whichever occurs later, your obligation can automatically terminate. As with most legal issues, however, there are caveats to this. If the child is still in secondary school at the age of 18, the child support obligation will not automatically terminate until the child graduates, drops out of school, fails to make academic progress, or reaches the age of 20, whichever comes first.
In addition, if parents having more than one child, it is important to keep in mind that when and the oldest child reaches the age of 18 the parent paying child support cannot simply stop paying child support or unilaterally reduce the child support amount he or she pays. The only exception to this is where a child support order which contemplates this situation and orders what the child support will be when the parent paying child support is no longer obligated to pay for the oldest child. If this order does not address what will happen upon the oldest child aging out of child support, typically the parent paying child support must petition the court to modify their child support obligation.
Finally, if you made a prenuptial or separation agreement in which the parent paying child support agreed to a child support amount greater than what that parent would owe under a child support guideline calculation, the courts will generally enforce such an agreement. Additionally, even though courts cannot order a parent to pay for child support once a child reaches 18 or graduates high school (whichever is later) or that a parent pay for college, if a prenuptial or separation agreement states that a parent will do so, the court may also enforce such terms of an agreement. In order to avoid paying for these “extras”, a parent would have to attempt to modify the prenuptial or separation agreement by overcoming the presumption that the amount is just and reasonable. Only in showing that the amount is not just and reasonable can that parent hope to prevail in modifying those terms in the prenuptial or separation agreement.
If you are facing divorce or want to petition the court to modify a post-divorce order, please contact Arnold & Smith, PLLC for a consultation with one of our dedicated family law attorneys today. Our experienced team of attorneys handle a wide variety of family law matters for our clients, ranging from prenuptial and separation agreements, post-separation support and alimony, equitable distribution, child custody and child support to adoption.