Written by Bill Hunter, Hunter & Hein, Attorneys at Law, PLLC, updated 03/01/2018
* Please note that the following is a brief overview of a complex legal subject and is not meant to provide legal advice. When involved in a child custody or child support dispute, it is important to consult with a family lawyer in your area who is familiar with your local rules and procedures. If your matter is located in Mecklenburg or Cabarrus counties, our Charlotte child support lawyers can help. Contact us today at 704-412-1442 to speak to an attorney.
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Have questions or need help with a child support matter based in Mecklenburg or Cabarrus counties, including the cities of Charlotte, Concord, Harrisburg, Mint Hill, Matthews, Davidson, Huntersville, Davidson, Cornelius, or Kannapolis? Our Charlotte based child support lawyers are prepared to help with all aspects of child support disputes, including: establishing and modifying child support; drafting agreements and consent orders; assisting with child support negotiations; and litigating child support matters in court. Call us today at 704-412-1442 to speak to one of our attorneys, or complete the contact form on this page and one of our child support lawyers will contact you shortly.
The child custody arrangement between the parties involved in a child support case is one of the primary components in calculating child support. However, the obligations of parties under the child custody and child support orders are independent of each other. For example, if one parent is not allowing the other parent to visit with the minor child involved, the parent being denied visitation may not withhold child support as pay back. Conversely, if a parent obligated to pay child support is not paying child support as ordered, it does not give the other parent the right to withhold visitation with the minor child from the non-paying party.
The Child Support Guidelines assume that the parent who receives child support will claim the tax exemption for the child involved. The party paying child support under the Guidelines understandably often presumes that he or she should therefore be entitled to claim the child for tax purposes, which is not accurate when the guidelines are involved.
North Carolina General Statutes provide that in order to award attorney’s fees in a child support case, the court must make the following three findings: (1) that the potential recipient is acting in good faith; (2) that the potential recipient has insufficient means to defray his or her legal expenses; and (3) that the potential payor has refused to provide an adequate amount of child support given the circumstances in place at the beginning of the child support action.
Calculating/estimating child support using the Guidelines can be achieved by using a child support calculator. The calculator will vary depending on the custodial arrangement of the parents involved, and requires a number of inputs including the gross earnings of the parties involved, the medical insurance expense paid on behalf of the child, and work-related child care expenses.
Most child support cases are resolved by the North Carolina Child Support Guidelines (the “Guidelines”). The Guidelines create a rebuttable presumption as to the amount of child support that should be ordered in cases in which the combined income of the parties involved does not exceed $300,000 per year. A court may “deviate” from the guidelines upon a showing of evidence indicating that application of the Guidelines will either not meet or exceed the reasonable needs of the child involved considering the ability of the parents to provide support or if use of the NCCSG would otherwise be unjust or inappropriate.
The Guidelines allow parents to seek child support for up to 3 years prior to the actual date on which the party files for formal child support. The amount of retroactive support is determined by either using the Guidelines as they would have been applied at the beginning of the period of which retroactive support is sought or based on the fair share of actual expenditures incurred on behalf of the minor child during the retroactive period. However, note that if the parties have an unincorporated separation agreement in place which addresses child support, the retroactive award may not be different than an amount already specified in the agreement.
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NC Child Support Guidelines are clear in holding that the income of a person who is not a parent of the child at issue shall not be considered as income to a parent involved. For example, if a party to child support action who makes minimum wage remarries to a wealthy spouse making millions of dollars a year, that party’s income for child support purposes shall not be adjusted from the minimum wage level based solely on the new spouses’ income…the basic premise being that the new spouse does NOT have a legal duty to provide support to his or her step-child. While the income itself may not be considered, there is case law holding that gifts and “maintenance” (i.e., free housing, reimbursed meals, use of a free vehicle, etc.) provided by third parties may be considered as income to the recipient. As such, there are arguments to be made that gifts and maintenance from a new spouse should be considered either income to the recipient of the benefits, or as a ground to potentially deviate from the child support guidelines.
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