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Child Support Modification

Modification in General
If a separation agreement has not become part of a court order, then (like other contracts) it can be modified only with the consent of the parties.  The parties can consent “in advance” by including in the agreement a provision that it may be modified under specified circumstances.  If the parties don’t agree that those specified circumstances exist, then the party seeking the change can apply to the court for an order stating that, under the contract, new circumstances merit the change in the agreement.

It does not violate North Carolina public policy to state in a separation agreement that such an agreement may not be modified, except with regard to children and their support.  (The court always has jurisdiction to see to the best interests of the children.)

If a separation agreement has become part of a court decree, then it is no longer “merely” a contract and different rules apply with respect to modification.  North Carolina statutes provide for modification only upon a showing of a substantial change of circumstances.  State law will not enforce a clause stating that the agreement is not modifiable in an agreement that has become part of a court decree.

In general, if a separation agreement is part of a decree, the court will apply statute law to “trump” the terms of the agreement.  For example, the parties may agree that alimony will continue to be paid after the party receiving it remarried, but the statute prohibits this.  However, even though the law generally does not require that a parent support a child once the child reaches legal adulthood (age 18), the courts will enforce an agreement that is part of a court order in which a parent agrees to support  the child until a later date (for example, until the child’s college graduation).

Modifying Child Support
Parents may provide for the support of their children in their separation agreements, whether or not such agreements become part of court orders.

However, while parents have freedom to enter into contracts in general, provisions in agreements that concern children cannot prevent the state from acting in the best interests of the children and providing for their welfare.

But the law also recognizes that parents are often the best judges of what their children need.  Thus, parental agreements regarding child support will be given weight by the courts.

For reasons of public policy, courts will refuse to honor terms of separation agreements in which a parent is relieved from supporting a child, or in which a parent agrees not to seek child support in the future.  A parent’s agreement not to seek visitation with a child will not justify enforcement of such a clause.

Courts will also not enforce an agreement by which a parent waives any claim for future child support in exchange for a lump-sum payment, as courts recognize that a child’s needs (and a parent’s ability to meet them) may change in the future.

A court will generally enforce agreements that specify the amount of child support, if the judge concludes that the amount is in keeping with the best interest of the child.  Courts will commonly enforce such agreements even if the parties agree to more child support than called for in the statutory guidelines, and more than the court would have ordered on its own.

Motions to Modify Child Support Based on Agreements
After the parents have entered into a separation agreements, one of the parents may decide that the amount of child support specified is not the proper amount.  The parent may then bring a motion to modify the amount of support.

A court will presume that the amount the parties originally agreed to was proper, just, and reasonable.  Thus, if an agreement has not become part of a court decree, the moving party will have the burden of overcoming this presumption.  The moving party will also need to show what amount of child support is required.  Since the court was not involved in setting the original amount, a party only need show what amount is required to meet the reasonable needs of the child.  The moving parent is not required to show a change of circumstances.

In ruling on a motion to modify child support based on a separation agreement, the court must compare the needs of the child at the time of the hearing to the amount to which the parents originally agreed.  If the moving parent fails to rebut the presumption that the original amount was reasonable, then the court will order payment of the original amount.  If the moving parent does meet the burden of showing that the agreed amount was unreasonable, then the judge will refer to the statutory guidelines for child support, deviating from the guidelines in an appropriate case.

Deviation from the state child support guidelines involves four steps:
The court must determine the presumptive amount of support under the guidelines.  This is based on factors including:
The parents’ incomes
The number of children from the relationship
The number of overnights a child is with each parent
Support obligations for other children
Child care costs
Health care costs
Other extraordinary expenses
The court must hear evidence on the need of the child and the parents’ ability to pay support.
The court must determine whether the guideline amount would either not meet or would exceed the child’s needs, or would be otherwise unjust.
The court must make findings of fact that would allow review of the court’s decision by a court of appeal, if a parent challenges the court’s decision.
To order deviation from the guidelines, the court must make findings regarding the needs of the child and the estates, earnings, conditions, and living standards of the parties.

“Estates” includes savings, real estate holdings, stocks and bonds, and other valuable property.
“Earnings” includes wages, salaries, benefits (such as free or reduced-cost housing), and investment income.  Even income from illegal activities such as gambling may be taken into consideration.  Income may be imputed to a parent who deliberately depresses his or her income by remaining unemployed or taking a low-paying job.
“Living Standards” takes into account a parent’s duty to give children “those advantages which are reasonable” considering the parent’s financial condition and position in society.  I.e., the child should be provided enough support to be able to live in the same fashion as if the family was intact.

A court can also consider any “special circumstances,” such as the conduct of the parties and fairness.  For example, where the amount of child support ordered would allow the children to maintain a “high lifestyle” but reduce the father to poverty, the payments were deemed unfair.

If a moving parent is successful in showing that the original agreed amount of support was unreasonable, ordinarily the new amount will only apply to future child support.  To justify a retroactive change in child support, the parent will have to prove that an emergency situation justifies it.  Such an emergency may involve either the parent or the child.

If the parent who owes child support seeks modification, and the court orders payment of a lower amount of child support than the parties originally agreed, the other parent can still sue the paying parent to enforce the terms of the original contract.  However, if the parent who is owed child support seeks modification, and the court orders an amount less than the amount previously agreed to, that parent cannot still sue to enforce the payment of the amount in the agreement.

Dana Wilson
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