Dear Carolina Girl:
Let me try to explain my thoughts here. First, it appears that you are in litigation with him. Without seeing the Complaint, Answer & Counterclaims, and Reply here is what I think:
1. He no longer agrees with the terms of the separation agreement, and is asking the court to act as if the agreement does not exist. It appears that you sued him first, from your letter below, so I do not know if you violated the agreement by doing this.
2. Your original question, and the question below, depend on what issues you settled in your separation agreement, what has changed since the separation agreement was entered, the situation and circumstances surrounding the signing of the separation agreement, etc.
3. Sometimes, a client will sign a separation agreement and then become faced with a tragedy, like a job loss, illness, or disability. When that happens, it may be an impossibility for that person to follow through with the terms of the separation agreement. In these cases, I recommend to my clients to try to work with the other party on solutions that benefit both of them, but keep the parties out of court.
4. Child support is generally set by looking at the parties' current income, child care costs, and medical insurance. A deviation from the child support guidelines is where one party asks the court to make the paying party pay more than the guidelines say they should, or less than the guidelines say they should, but not that the guidelines are not used at all. The guidelines are presumptive in North Carolina, which means that we first look to the guidelines, and then ask the court to change that amount - or deviate - for some reason.
5. If he is not following the terms of your separation agreement, you can always initiate a claim for breach of contract.
Lastly, it sounds like you have a number of questions that are not being answered by your current legal representation. I suggest that you write your questions out to them, set a meeting, and get your answers directly. Best of luck.
Janet L. Fritts
Attorney at Law
4101 Lake Boone Trail, Suite 200
Raleigh, North Carolina 27607
The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service but a full discussion with an attorney should be undertaken before taking any action.