Although the statutory guidelines used by courts to determine child support payments facilitate uniformity and fairness, they also create a problem. Circumstances change throughout life, for better or worse. Accompanying these changes are fluctuations in one’s finances. Unfortunately, changing circumstances can create a situation where child support payments are no longer sufficient to meet a child’s needs.
Other times, however, child support payments become unbearable for the non-custodial parent, often as a result of complications like illness or the loss of a job. In these situations, child support obligations often go completely unpaid as a result of the helplessness felt when bills continue to pile up. The legal ramifications of not fulfilling child support obligations, discussed here, complicate this situation.
Child support obligations are not set in stone, however. It is possible to modify child support obligations, whether those obligations stem from an agreement between the parents or an order by a court. The process differs somewhat depending on the source of the obligation—contractual or court ordered.
Modifying Child Support Established in a Separation Agreement
A separation agreement is a contract between two married individuals regarding issues related to separation, such as property distribution, and child custody. One benefit of such an agreement is that it allows parents to negotiate things like child support instead of letting a court make those decisions for them.
As long as these agreements are not incorporated into a court decree, the terms, including child support terms, can be modified with the agreement of both parties. Unfortunately, attempted changes to money payments are rarely agreed to cordially. Therefore, the more common method for adjusting the contractually obligated child support payments is through a court action.
Courts assume that the original terms of a contract are reasonable—the parties agreed to them, after all. Therefore, the party seeking to change child support payments must prove that that the support amount included in the agreement is unreasonable, taking into account the needs of the children existing at the time of the hearing and considering the estates, earnings, conditions, accustomed standard of living of the child and the parties, the child care and homemaker contributions of each party, and other facts of the particular case. If the court finds that the amount agreed to is unreasonable, then it will follow the statutory child support guidelines in order to set the proper amount of child support.
Modifying Child Support Ordered by a Court
Modifying child support obligations established in a court order is a more difficult endeavor. The party seeking the change has a much higher burden to overcome, and must show a substantial and material change in circumstances from the time the court order was issued. Nevertheless, modification is not impossible. The following provides an overview of the process.
Where Can Court Ordered Child Support Obligations be Modified?
Under the Uniform Interstate Family Support Act (“UIFSA”) now adopted in all states and the District of Columbia, child support orders are enforceable across state lines. In fact, once a state court establishes subject matter and personal jurisdiction—often by being the state in which the child lives—and issues a child support order, that state’s courts retain continuing exclusive jurisdiction over all modifications to that order. That means that any modifications to that support order must be sought within the issuing state.
The justification for the law is to allow for uniformity in child support agreements, as state laws often differ extensively, and divorced parents sometimes move to different states. The two common exceptions to the rule make sense considering this justification. The first exception is met if neither the child nor any of the parties to the court action continue to live in the state that issued the order. If none of the parties live in the state, it would not make sense to make them all return to that state to modify the order. The second exception involves each party providing written consent to a transfer of jurisdiction from the original issuing state to another state where the child or at least of the parties lives.
What does this mean? Essentially, when a child support obligation already exists, you must return to the state that issued the order in order to seek a modification. Therefore, if a North Carolina court ordered your child support obligation, you have to go before a North Carolina court to modify it.
Showing Required to Modify North Carolina Child Support Orders
As noted, a showing of substantial change must be made to justify a modification of child support obligations included in a court order. This substantial change must have come into existence since the last court ruling on the child support order, which means your argument cannot just be that the agreement was unfair from the beginning. Each circumstance is unique, but some things that might qualify as “substantial” change include the following:
- Income Changes: A significant involuntary decrease in income—for instance, as a result of losing a job—might be considered substantial enough to warrant a change in child support payments. At the same time, an increase in income, such as from a promotion or a new job, might justify an increase in child support payments.
- Custody Changes: Changes in custody can shift the primary provider for a child. For instance, if a noncustodial mother paying child support later takes custody of the child, the expenses shift. Now the mother is primary provider, and the father has become the noncustodial parent who must provide child support.
- Significant Changes in Child’s Needs: Such changes can increase or decrease the financial needs of a child, warranting a change in child support (For instance, where an illness requiring extensive treatment or special education is not discovered until after child support is established).
- Old Child Support Orders: North Carolina guidelines also allow for a modification if the support order is older than three years and there is a difference of 15 percent or more between the amount currently owed and amount that would be owed if the guideline amount was recalculated at the current time.
Clearly, modifying child support payments is a complex, though often necessary, process. Our experienced family law attorneys have dealt with this issue before, and can help you through the process. Call Remington & Dixon PLLC today for a consultation at (704)817-9050. We are happy to help you.
Jennifer is a founding partner at Remington & Dixon, PLLC. Jennifer concentrates her practice in the areas of family law, wills & estates, unemployment benefits appeals, and traffic. At Elon University School of Law, Jennifer was the vice president of the Public Interest Law Society and a member of the Family Law Society. During law school, Jennifer interned at the Elon University School of Law Field Placement Clinic with Legal Aid of North Carolina where she represented clients in domestic violence court proceedings.