Attorney Christopher Adkins just released his new book entitled The Book on Divorce in North Carolina. The book is designed to help the reader understand family law issues such as divorce, property division, child custody, child support, spousal support and alimony. Questions are answered regarding marriage counseling, affairs and how they impact separation, the process of divorce, child custody orders and agreements, calculating child support, and separation agreements.
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During a divorce, many issues are intertwined, and the resolution of one is issue is in many cases, dependent upon the other. This is perhaps nowhere more true than with respect to the issues of child custody and child support. It is only understandable that regardless of the custody arrangement that the parties ultimately choose, parents want to ensure that they can adequately support their children as part of that arrangement. While the law requires that parents continue to support their children following a divorce, the custody arrangement that the parties choose (or that is ordered by the court) may have a significant effect on the amount of support that is to be provided. Although divorce may end a marriage, parenthood is forever. And regardless of how they may feel toward their ex-spouse, most parents truly want to support their children – out of love, and not simply because it is legally required. As a result, child support is often one of the less contentious issues that couples negotiate during a divorce. As most parents know, child support is a monthly payment, typically made by the noncustodial parent to the custodial parent to provide for the reasonable needs of the couple’s children. Under North Carolina law, this includes the biological children of the marriage, any children that the couple adopted together, and any children born to a relationship between the parties. A child support obligation is usually long-lasting, until the children reach the age of eighteen or are otherwise emancipated. As a result, it is more than worthwhile for most couples to truly spend the time thinking through what child support and custody arrangements might work best for your family – and the two are distinctly intertwined. In North Carolina, there are two primary ways that child support can be determined – either in an agreement, which the parents negotiate and enter into together, or by a court, based upon the state statutory guidelines. In this chapter, we’ll discuss both of those options – what they entail, the advantages and disadvantages of each, and how your custody arrangement might affect those determinations. Addressing Support by Agreement As with almost all issues the must be resolved during the divorce process, child support can be determined by the parties by agreement. If you and your spouse are capable of communicating effectively and with an open mind, and are committed to working together toward the best resolution of your issues for your family, addressing support obligations in a separation agreement offers many advantages. Choosing to set the support obligation yourselves provides more leeway to determine what works best for your family and your lifestyle. You can ensure that the agreement fits your family’s unique needs – even if those needs are different than those which are normally provided for under the legal guidelines. For example, in a separation agreement, the parties may decide that they want to extend support payments beyond the age of eighteen, address the obligation to pay for private school or college expenses, make payments on a particular timeline that works best for the parties, or implement any other number of specific conditions that work well for their particular circumstances. A second advantage of choosing to set the support obligation in an agreement is that not only do you have the flexibility to determine the specifics of support in the first place – you also have the freedom and flexibility to make changes to the agreement as your life situation changes. Of course, both parties will need to be in agreement about those changes, but as long as that is the case, the agreement can be rewritten or modified at any time to ensure that the support provided continues to work best for the family’s life circumstances. Yet another advantage of entering into an agreement is that generally, doing so means that couples will spare themselves a great deal of the expense and stress that they would likely have incurred by choosing to battle an issue out in court. For the most part during divorce, with respect to all issues, choosing to work together toward an agreement that works well for everyone involved is less contentious, and less costly. The effort is well worth it. Clearly, then, there are many advantages to choosing to address child support by agreement. The question then becomes, how to draft an agreement that best fits your family’s circumstances? If two parents do decide to enter into an agreement regarding child support, it can be helpful to consider the following advice when negotiating child support payments:
Remember, that the ultimate goal of your negotiations is to ensure that your children have the same financial support that they would have received if you had remained married. Spend the necessary time talking with your attorney in detail about your children’s lives – their needs, their regular expenses, their health issues, and the lifestyle they are accustomed to. Be honest with your attorney about your income, your expenses, and your goals for your children’s future. Most importantly, go into the negotiations with an open mind. Be willing to communicate openly and compromise if necessary, but don’t hesitate to stand up calmly and confidently for the things that are truly important to you. Court-Ordered Child Support As with all issues in a divorce, if the couple is unable to come to an agreement on their own regarding child support, a court will make the determination for them. Sometimes, depending upon the dynamics involved in a relationship and the animosity that may be present between the parties, having a court decide the key issues is simply the best choice. While child support can seem like a complex issue to those unfamiliar with the legal system, there are fortunately detailed guidelines in place to help courts make the determination as to the amount of support that is appropriate in any given case. The North Carolina Child Support Guidelines provide guidance to the court regarding support calculations, and can help parents roughly plan for and estimate what amounts they might be expected to pay. These guidelines are based on a shared income formula. The idea behind this method of calculating support is that child support should be an obligation that the parents share jointly – that is, that the children essentially receive the same percentage of their parents’ income that they would have received if the parents had remained married[1]. Also factored into the amount of support that is ultimately awarded is the custody arrangement that the parties have, as we will discuss below. As a court makes a determination with respect to support, a number of factors will be considered. Some of those factors include how much time the child spends in each parent’s household, which parent has primary custody, the income of each parent, and each parent’s ability to pay support. Other factors that the court might consider include:
Though in the vast majority of cases, courts use the North Carolina Child Support Guidelines in determining support obligations, there are some situations in which courts will deviate from those guidelines. Some of these circumstances include:
In those special situations, courts will typically make support determinations on the basis of the child’s actual needs and the expenses associated with those needs, as opposed to utilizing the formula set forth in the guidelines. In the majority of cases, however, families who have child support obligations determined by the court will find that the court determines those obligations using the state support guidelines. These guidelines apply statewide, and are revised at least every four years to adequately reflect cost-of-living increases. Typically, there are three worksheets used for calculating support under the guidelines:
As indicated by the differing worksheets, child support, when awarded by a court, is directly affected by the custody arrangement that the parties have. If the parents have an arrangement where one parent is the primary physical custodian of the children and the other parent has less than 123 nights with the children, the parent who has primary custody will receive the maximum amount of support available under the guidelines. On the other hand, if the parents have a split custody arrangement (a somewhat rare arrangement where one parent has primary custody of on child and the other parent has primary custody of the other child), child support may be drastically reduced, or may not be awarded at all, as each parent would be responsible for the day-to-day expenses of the child that lived in their home. In a third scenario, if the parties essentially have shared custody – meaning that each parent spends at least 123 nights with the children each year, the amount of child support awarded might decrease or increase depending upon the amount of time that each parent spends with the child. It is also important to keep in mind that even if you do have equal amounts of time with your children, if one parent makes significantly more than the other, support may still be awarded, because child support is intended to be paid proportionately to income. Clearly, the custody arrangement between the parties will have a significant effect on the amount of support awarded. Moreover, while the guidelines are generally adopted and used to calculate support, a court may choose to look beyond the guidelines and set a different amount if the particular and unique needs of the children require it. A court always has the obligation to do what is in the best interests of the children, and at times, that means looking outside of the guidelines at the whole picture of the child’s life to make a determination. Regardless of whether the court ultimately determines the support obligation or the parties choose to decide it by agreement, after it has been determined, North Carolina law provides that one spouse can pay the support amount directly to the other at the required times, if that arrangement works well for both parties. In other circumstances, however, an intermediary might be helpful, and in those cases, child support can be paid through the North Carolina Child Support Centralized Collections (NCCSCC), which will then send the support collected to the receiving parent, either through direct deposit or via a debit card. Some couples choose this option in order to have a document record of all support payments which are made from one parent to the other, if a dispute should ever arise. Beyond the Dollar Figure – A Look at the Emotions Behind Child Support and Child Custody Regardless of whether the support amount is awarded by the court or decided upon by agreement, it is important not to underestimate the level of emotion that might be involved in these decisions, and the reactions that those emotions might cause. So much of divorce is emotional, and perhaps nowhere is this more true than with respect to issues involving children. Divorce is a stressful time, and even when the divorce is over and the dust settles, emotions can still run high. It is important for all parties to remember that regardless of the ending of a marriage, the obligation to parent together for the good of your children remains. It is important, if you are the parent who is responsible for making child support payments, that you do so on time, and in full. Never withhold payment to “punish” the other parent – after all, the ones who are really being punished are your children. On the other side of the coin, if you are the parent who is the primary custodian and the other parent falls behind on their child support payments, do not withhold visitation privileges until the support is paid, for the purpose of “getting back” at the other parent. While this may be tempting, and while it may feel good in the moment, you are harming your children in the long run, and potentially placing yourself in a position to incur legal consequences as well. If you are not regularly receiving the support that is due, let child support enforcement authorities address the issue of non-payment, and speak to your attorney about possible remedies. Ultimately, when it comes to child support, the hope is that parents will always continue to do what is right and best for their children, regardless of their emotions or negative feelings toward the other parent. Both parents need to be realistic and practical about the custody arrangement they choose, and the support obligation they decide upon. Doing so is ultimately better for everyone in the end. Without question, the “nuts and bolts” of the child support process and its interplay with the custody arrangement that the parties have might seem confusing at first glance, and this is certainly understandable, particularly for those who are not legal professionals and who are unfamiliar with the process. The good news, though, is that an attorney who is well-versed in the law and who frequently handles divorce cases will be able to guide you through the process, and advise you as to how the law might apply to your particular circumstances. The value of such legal advice cannot be overstated, particularly when it comes to something as important as matters involving your children. Together, you can reach the resolution that is best for your family. [1] As a basic example, if, when the parents were married, they spent $1,000 per month on their children, and one spouse made 70% of the combined income, that spouse would be responsible for 70% of the support that the child would receive, or $700. Of course, there will be extraordinary expenses that may also factor into the calculation, but the idea, generally, is that parents continue to support their children in the same manner and in the same proportion as they would have prior to the divorce. If you would like to arrange a child custody and child support consultation with an experienced child custody lawyer in Huntersville, NC, contact Adkins Law. Understandably, the issues of child custody and child support often go hand-in-hand. Though divorce may end the marital relationship, it certainly does not end the relationship parents have with their children – or their obligation to support those children. And without question, most parents want to support their children – out of love, and not simply because the law requires it. As with child custody, given our modern trend toward cooperative and collaborative legal negotiation, child support obligations may be determined by the parties based on their needs and lifestyle, or it can be determined by the court based on statutory guidelines.
Regardless of which method you ultimately choose to determine child support amounts for your particular situation, having a basic understanding of how child support generally works can be beneficial – after all, the more understanding you have, the easier it will be to negotiate and settle upon an agreement that works well for everyone involved. Most often, child support is a monthly payment from the non-custodial parent to the custodial parent to provide for the couple’s children who are in that parent’s custody. Its purpose is to ensure that even though the family is transitioning from one home to two, the children are able, to the greatest degree possible, to maintain their usual routine and standard of living. It is typically a long-standing arrangement, often lasting until the children in question are eighteen years old[1]. Defining Support in a Parental Agreement As with issues of child custody, if you believe that you and your spouse are capable of working cooperatively towards a goal together, then addressing it in a separation agreement is an excellent option, as it gives you more leeway to determine what works best for your particular circumstances, and more flexibility to make changes to the agreement as your life situation changes. Choosing to address child support in a separation agreement means that you can ensure that your agreement fits your needs – even if those needs are different than what is normally provided for under the legal guidelines. For example, in a separation agreement, the parties may agree to extend support payments beyond the age of eighteen, address payment of private school or college tuition expenses, or attend to other circumstances that are important to the parties but that might not be provided for by law. Allowing the Court to Determine Support If parents are ultimately unable to come to an agreement on child support themselves, they can always ask the court to make the determination. Once the parties have requested the court to make that determination, the court is not bound by any support obligations previously set forth in any separation agreements. In North Carolina, courts determine child support obligations using the North Carolina Child Support Guidelines. These guidelines were created to help calculate support obligations, and are revised at least every four years to adequately reflect cost-of-living increases. To determine your approximate child support obligation, you can use the calculator provided on our website, and can also download the appropriate child support worksheets utilized for calculating potential obligations. Typically, there are three worksheets used for calculating support under the guidelines:
Generally, when determining a support obligation, the court will look to the income of both parties from all sources. This includes not only the salaries of the respective parties, but also any stock options, IRA accounts, investments or other sources of income. In addition to considering the income of both parties, the court may also consider other factors, including, but not limited to:
Courts will often also consider and add extraordinary expenses, like special child care, extra medical expenses, counseling expenses, or necessary special education expenses, and will allocate those expenses between the parties as the court deems reasonable in its discretion. Though in the vast majority of cases, courts use the North Carolina Child Support Guidelines in determining support obligations, there are certain situations in which courts will deviate from those guidelines. Some of these circumstances include:
In these cases, courts will make the support determination on the basis of the child’s actual needs and expenses, as opposed to utilizing the formula set forth in the guidelines. Regardless of how the support obligation is ultimately arrived at, after it has been determined, North Carolina law allows for one spouse to pay the support directly to the other at the required times, if both parties are in agreement. In other instances, however, child support can be paid through the North Carolina Child Support Centralized Collections (NCCSCC), who will then send the child support to the receiving parent through either direct deposit or debit card. Often parents choose to send support payments through NCCSCC in order to have a documented record of all support payments made from one parent to the other in case a dispute should ever arise. In discussing support, it should also be noted that parents who are in the midst of the divorce process may request temporary support, even if the divorce has not yet been finalized. This makes sense after all, particularly if one spouse has already moved out of the marital home. In these instances, the party needing the support can request a hearing for temporary support, and following a hearing, the court can enter a temporary support order, which will remain in place until a permanent child support order is issued. Requesting temporary support involves a number of steps, it is always a wise decision to seek the help of a trusted attorney in doing so. [1] It is important to remember that if you have more than one child, and your child support agreement or order does not allocate the support amounts between the children, then you must seek a modification when one of the children reaches the age of 18 instead of simply stopping the payments, unless the original agreement or order contains an automatic termination date for the obligation. It should also be noted that if your child is 18, but is still attending high school, you cannot seek to terminate your support obligation until the child graduates, otherwise drops/fails our of school, or turns twenty, whichever is first. If you need to speak with an experienced child support lawyer, please contact Adkins Law to arrange a consultation. As children grown and as life circumstances change, children’s needs may change too. In some cases, one parent or the other loses a job. In other cases, unanticipated medical expenses arise, making it difficult to make ends meet. In still other cases, a child may be diagnosed with a learning disability that requires special education at a private school. Ultimately, one of life’s truths is that we should expect the unexpected. In those circumstances, one of the parties, or both parties, may wish to modify the existing support obligation.
If the parties have agreed upon a support obligation as part of their separation agreement, then they may modify the agreement as they wish, provided that both parties are on the same page, and are willing to do so. In that circumstance, the parties would simply need to revise and redraft the agreement to fit their current needs, and have both parties sign the updated copy. When a modification of existing court-ordered child support is sought, however, the court must order the modification as well. In those instances, the party seeking the modification must show that a substantial change in circumstance has occurred which warrants the modification. Typically, if three years have passed and the child support guidelines have been modified based on cost of living to indicate an increase in the amount due, a substantial change in circumstances is presumed. When less than three years have passed, however, either child support services or the court must verify that a change of circumstance for either parent occurred of a nature sufficient to render the case eligible for review. Examples of those changed circumstances might include: o Changes in the physical custody arrangement of the children; o Changes in the children’s needs; o Significant and substantial changes in a parent’s income. If a party is able to prevent evidence of these changes, they may qualify for review of the current support obligation and modification as warranted. Whether or not a particular change in circumstances may warrant modification is a matter to be discussed with qualified and experienced counsel, who will be able to best advise you as to your particular circumstances. If you need to speak with an experienced family law attorney, please contact Adkins Law to arrange a consultation. Are you in need of an attorney to help you with your divorce, child support, alimony, child custody, etc.? Adkins Law is here to help! Call us at 704-274-5677 to schedule your consultation with an attorney here at Adkins Law.
When does child support terminate in Mecklenburg County? Child support terminates in North Carolina when a child reaches eighteen years of age, except:
1. It stops sooner if the child is emancipated. 2. If a child is still in high school when the child reaches eighteen, child support payments continue until the child graduates, ceases to attend school on a regular basis, fails to make satisfactory academic progress towards graduation, or reaches age twenty, whichever comes first, unless the Court, in it’s discretion, orders that child support payments at age eighteen or prior to high school graduation. If you have questions regarding child support or the termination of child support in Mecklenburg County, contact Adkins Law. We are located in Huntersville NC and serve the greater Charlotte area. In North Carolina, the goal of child support is ensure that the child is receiving the same proportion of their parents’ income as they would if they lived together. This is determined by a formula through the North Carolina Support Guidelines, which are designed to meet the needs of the child while being fair to both parents. The child support order will dictate the amount of money the non- custodial parent must pay.
How is the support computed? Calculating child support requires determining the parents’ total gross income and calculating the percentage that each parent contributes to the total. The court may also consider overtime pay, bonuses, self- employment and other biological or adopted children. Step- children are not considered in the calculation. It is important to remember child support has priority over all other financial obligations, and in addition to setting child support, the order may require one or both parents to provide health insurance coverage for the children. How does the process work? The non- custodial parent will be served with a Civil Summons and Complaint. They can respond to the document by filing an answer, providing financial information to the child support office prior to the hearing date and signing a voluntary support order, appearing at a hearing, or getting an attorney who will assist in responding to the Complaint. If the non- custodial parent does not respond to the Compliant, the court may enter a default offer. This means the court takes everything the custodial parent says to be true, and enters an order based on that information. Coming to an agreement between the parties is always preferred, and if both parents are able to find a solution that they can agree on then a court hearing is not required. Contact Adkins Law today to set up a consultation and discuss the best way to move forward in your Child Support case. Undeniably, many families in the US experience serious domestic problems that often necessitate legal interventions. Just like other states of the US, North Carolina (NC) too has its unique laws, under the North Carolina General Statutes (NCGS), that govern all the family matters and that are applicable across its respective regions including Mecklenburg County and all the regions within such counties such as Cornelius, Davidson, and Huntersville in Mecklenburg County. As such, it is crucial for all persons residing within NC, particularly in Mecklenburg County to know the fundamentals of family law in NC likely to affect them such as separation and divorce, alimony, child support, and child custody.
Noteworthy, separation and divorce (NCGS § 50) are two different concepts under North Carolina’s family law statutes. A legal separation does not end one’s marriage. Instead, a legal separation lets the parties remain married but live separately. Marital misconduct may come into play here if a party wants to file an action for a forced legal separation. However, for an action for a forced legal separation (divorce from bed and board) to succeed, the complainant must provide evidence establishing that the spouse was at fault including cruelty, adultery, and indignities, etc. Significantly, although one can legally separate at whatever time, the parties must have been physically separated for a minimum period of one (1) year to succeed in a no-fault divorce. As such, one must meet the legal definition of “separation” to file a divorce case. Merely living in different rooms of the same house or living in separate houses but maintaining the appearance of a relationship does not qualify as a legal separation under the state’s law. If the couple reconciles, the separation period terminates. Additionally, another option other than separation exists, though rarely pursued. Here, the law allows a partner to file for divorce after being lawfully separated for three (3) years and believes that the other partner suffers from untreatable lunacy. Alimony, child support, and child custody are also NC family law issues. According to NCGS § 50-16.3A, alimony is the act of paying for the upkeep and maintenance of a partner, either through a lump-sum or on an ongoing basis provided by the supporting spouse to the dependent spouse. In Mecklenburg County, forinstance, the general rule is that a dependent spouse is the one earning less income, though the NCGS contains sixteen factors (NCGS § 50-16.3A) that guide the court in making such a determination. When it comes to child custody in NC, the most common reference usually made is “the best interest of the child.” Here, the judge (not a jury) hears the evidence presented before the court and decides how the parents, either jointly or individually, will share time with the children and make decisions impacting the lives of the children. Often, the court appoints joint physical custody of the children to the parents. Sometimes the court will award one parent as having main physical custody while the other having ancillary physical custody accompanied with a visitation schedule. One parent is usually ordered to pay the other parent child support. Such support is usually assessed using the North Carolina Child Support Guidelines, especially if the combined yearly income of the two prior to taxation amounts to $300,00.00 or less (though also dependent on the custodial schedule), and such a support lasts until the child turns 18 years and graduates high school, or the child is lawfully emancipated. If you need to speak with an experienced family law attorney, contact Adkins Law. I’m the Father?!
For a couple who has been trying to get pregnant, the sentence “you’re the father” will often be received as exciting news. But for all of the frat boys, famous rappers, and casual daters of the world, this may be your worst nightmare. So, what do you do if a paternity action is brought against you? What is a paternity action? A paternity action is a legal suit that is used to establish the paternity of a child that can be brought by the mother or a state agency if the mother is receiving state financial assistance. In this proceeding, the judge will hear evidence as to why the mother believes that you are the father of her child and will often order genetic testing. This testing will be done by a laboratory chosen by the court. If the genetic match is 97% or higher, you are the father! What does it mean to be the legal father? Establishing legal paternity comes with several obligations and benefits, including paying child support, and having the right to visit with your child. What should my next steps be? If a paternity action is brought against you, you will have the opportunity to file an answer with the court stating why you believe you are not the father. You should contact Adkins Law ASAP to set up a consult to help you through this process. |
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