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.
In accordance with the federal Child Support Enforcement Act, each state has developed specific guidelines to calculate a range of child support to be paid, based on the parents’ respective incomes and expenses. Each state’s guidelines vary considerably, meaning that in virtually identical situations, the child support ordered in one state may be far more or less than that ordered in another state. Judges in some states are allowed a considerable amount of leeway in setting the actual amount, while other states have very strict guidelines that leave judges with very little leeway.
Regardless of the judge’s latitude, there are statewide guidelines put in place that specify factors that must be considered in determining who pays how much child support. These factors include:
When one parent does not work
When income is received on an irregular, non-recurring, or one-time basis, the court may average or prorate the income over a specified period of time or require an obligor to pay as child support a percentage of his or her non-recurring income that is equivalent to the percentage of his or her recurring income paid for child support.
Potential or Imputed Income: If the court finds that a parent’s voluntary unemployment or underemployment is the result of the parent’s bad faith or deliberate suppression of income, child support may be calculated based on the parent’s potential income. If a parent has no recent work history or vocational training, potential income should not be less than the minimum hourly wage for a forty hour work week.
Third party consideration
Guidelines do not apply to child support orders against stepparents or other persons or agencies who are secondarily liable for child support. They may, however, be a small factor to consider in offsetting some expenses that a parent would have otherwise been responsible for.
Maxed out guidelines
There are cases in which the parents’ combined adjusted gross income is more than 300,000 a year. When income exceeds this threshold, the normal child support schedule is maxed out. Inn cases that involve very high incomes, the courts will need to set the award on their own. When setting this award, the court must ensure that the amount of the award meets the reasonable needs of the child.
The North Carolina Court of Appeals addressed the issue of retroactive child support in the case of Loosvelt v. Brown, on July 15, 2014. Mr. Loosvelt, brought a lawsuit against Ms. Brown for child custody and to establish child support obligation. Ms. Brown then brought counterclaims including one for retroactive child support. The trial court awarded over $7,000 per month in child support along with around $40,000 in retroactive child support including in excess of $5,000 in pre-birth nursery expenses and maternity clothes.
The Court of Appeals addressed the issue retroactive child support and clarified the law on the expenses that can be recovered before a child’s birth. The court held that "as the legal obligation arises when the child is born, expenses incurred prior to the child's birth cannot be considered as retroactive child support. The only exception to this is in the North Carolina General Statute §49-15 which allows for "medical expenses incident to the pregnancy and birth of the child."
Furthermore, a parent may seek retroactive child support for child support prior to filing the complaint. The Statute of Limitations does limit (NCGS § 1-52(2)) limits a parent to know no more than three years of retroactive support. The parent seeking retroactive child support must present evidence of past expenditures made on behalf of the child that were reasonably necessary.
If you are filing an action for child support, be sure to talk with an attorney about making a claim of retroactive child support.
At Adkins Law, we believe in providing top-notch, quality legal services at affordable prices. If you need to speak with an attorney regarding a family law matter, traffic citation or issue, or for your estate planning needs, contact Adkins Law to arrange a consultation. Adkins Law has offices in Huntersville and Ballantyne for your convenience.
Need to speak with a family law attorney? Contact Adkins Law. Adkins Law provides legal representation for family law matters such as separation, divorce, child custody, child support, equitable distribution, and spousal support. We have locations in Huntersville and Ballantyne for your convenience.
By Elspeth Crawford
Wage garnishments are governed by an array of state and federal laws, and employers are often confronted by demands from multiple garnishors who all insist that they be paid now. Although the law requires that a significant amount of information be sent to employers along with a demand for wage garnishment, there are some rules that may not be explained by that material.
How Is The Garnishment Obtained?
In a nutshell, here's how wage garnishment works. A person or entity obtains a judgment in court against an employee or a government agency determines that an employee owes a debt to them. Typically, the judgment relates to child support, unpaid taxes, or student loans. The person or entity to whom the debt is owed is the "garnishor." The employee is the "debtor." The garnishor then applies to a court (if it is a private entity) or goes through an administrative process (if it is a government agency) in order to get a "writ" for garnishment of wages. The writ is essentially the document which gives the garnishor the green light go go after the debtor's wages. That writ is delivered to the employer, as the entity controlling what is paid to the debtor, making the employer the "garnishee."
When must an employer start paying on the writ?
An employer is required to begin paying on the writ when it is received, unless there are other writs with higher priority (see below). An employer must return a statutory response form within seven days of receiving the writ whether or not the employer will start paying on the writ immediately. Payments are made every time that the employee gets paid and should be prorated if the writ was not in effect for the full pay period.
Can an employee challenge a writ?
The employee receives a copy of the writ of garnishment sent to the employer. The time period varies from state to state in which the employee may challenge the writ by sending a challenge to the garnishor. Once the employer gets notice that there is a challenge,the employer must not stop paying. Instead, the employer should send payments (on the same schedule) to the court that authorized the writ, rather than the garnishor. The court will hold the money until the challenge is resolved.
Was the writ sent to the proper employer?
The statutory response form contains several grounds pursuant to which an employer may contest the payment demanded in the writ. The most common objection is that the garnishee is not in fact the employer of the debtor. The employer should contact legal counsel if it has questions about whether it is the proper garnishee to ensure that it is complying with all legal requirements.
How much can be taken out of the employee's wages?
There is a cap on wage garnishment of 25% of take-home income. In addition, there is a "floor" level of income protected from garnishment that is based on a minimum wage per week. The statutory garnishment calculation worksheet that will accompany the writ will guide the employer through the proper calculations.
When can the employer stop paying on the writ?
Generally, writs of garnishment expire, whether they have been fully paid or not, within a time set by state law. However, writs issued by a county or county agency, and federal student loans writs, do not expire until paid in full. In general, writs may be "continued" only by a new writ; that is, the garnishor has to supply the employer with a new wage garnishment order in order to continue having the employee's pay garnished. The 90-day clock does not start running until payment on the writ has started.
What if there are multiple garnishments?
Most of the confusion surrounding wage garnishment occurs when an employer receives more than one garnishment for an employee. The general rule is "first in time, first in right." That is, the first garnishment order gets priority and gets paid first. If the first garnishment is taking the full amount allowed -- 25% -- then the second writ has to wait until the first writ expires (varies between states). However, if the first writ is nottaking the full 25%, then the employer must start paying on the second writ at the amount below 25% that is not being taken. One notable exception is for child support garnishments. These take priority over other garnishments, and will "bump" garnishments that are currently being paid.
How does the employer handle federal student loan garnishments?
There are special rules for federal student loans. Federal student loan garnishment orders are not subject to state law.
However, federal student loan garnishment orders are capped at 10% of income. Consequently, if another garnishment writ comes in while a federal student loan garnishment is being paid, the employer must begin paying on the second writ at 15% of income.
If the employee is being garnished on another writ at 25% when the federal student loan garnishment order comes in, the employer does not need to begin paying on the student loan garnishment. In that event, however, the employer should contact the agency that issued the student loan garnishment order, or contact the Department of Education student loan compliance center at (404) 562-6013 and follow up with a letter to:
U.S. Department of Education
Administrative Wage Garnishment Compliance Branch
61 Forsyth Street, Room 19T89
Atlanta Federal Center Tower
Atlanta, Georgia 30365.
The compliance center's advice will most likely be to begin paying on the student loan garnishment when the prior writ expires under state law.
How does the employer handle tax and child support garnishments?
Complications arise when IRS tax levies or child support garnishments conflict with each other or other wage garnishment orders. IRS tax levies and child support garnishments typically take priority over other garnishments, including federal student loan garnishments. An employer should contact the issuing agency (the IRS or the child support enforcement office) for advice specific to the type of garnishments in conflict. If questions remain, the employer should contact legal counsel to ensure that it is not later held liable to both the employee and the garnishor for failing to properly assign priority among claims or for over- or under-paying the garnishments.
Garnishments are an extra burden on an employer, but it is essential that they be dealt with correctly. Otherwise, an employer could be held liable both to the employee and the garnishor for any errors. However, seeking and taking advice can make most garnishments a routine part of personnel management. Finally, an employer should remember that, under federal and state law, an employee cannot be discriminated against or terminated because of wage garnishments.
Take a look at the December 2014 issue of Huntersville Magazine featuring Adkins Law PLLC.
Adkins Law PLLC is located in Huntersville, North Carolina and primarily serves Mecklenburg County and the Lake Norman area.
If you need to speak with a divorce attorney, traffic attorney, or estate planning attorney, contact Adkins Law PLLC.