If a child support agreement was made 10 years ago with neither party requesting it to be updated during that time even though circumstances had changed during those ten years, i.e. salary increase of both parties, change of job, etc. Now there is a change of custody, i.e. one child with one parent, another child with the other parent and a third child graduating from high school, so there is now a change in child support being presented based on those changes. Can any of the changes in the past, i.e. salary increases, change of job, etc, be looked at to get back pay of child support is it only what is happening currently that drives the payment moving forward? Can this be taken to court to try and recoup any monies that should or should not have been paid?
It’s been long 10 years! Many things would have changed. Yes, it can be easily be done through the courts, but would require a professional lawyer to make the process proceed smoothly and fast. An experienced lawyer and their additional resources are very helpful during the court proceedings; especially in such sensitive matters.
Does that mean you could go back and reestablish a timeline of when child support would have changed and get money that wasn’t paid at the time?
Neither party would be awarded retroactive child support just because neither party filed a motion to modify the child support order. Child support can however, be modified now based on the current circumstances and the parents’ current incomes.
It would be nearly impossible to reestablish a timeline for when child support could have been modified and what the child support obligation should have been at any given time since the child support order was entered 10 years ago.
Anna Ayscue
Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest
Rosen Online | Unlimited confidential access to a North Carolina attorney for $199/mo - click here
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 only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.
Do we have to go back to court to update child support changes based on a change in circumstances such as one child going to live with another parent or a child graduating from high school or can we just redo the calculations based on the child support calculator without having to present it to the court?
You should file a motion to modify and enter into a new child support order even if the new order is a consent order entered by agreement of both parties. Otherwise, agreeing on a new amount and not entering into a new court order would put you in violation of the current order and risk being held in contempt of court.
Anna Ayscue
Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest
Rosen Online | Unlimited confidential access to a North Carolina attorney for $199/mo - click here
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 only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.
The original court order was just for custody and visitation. The child support was a consent order, I believe, i.e. we didn’t go in front of a judge to set that. He told us to go by the guidelines, i.e. no modification outside of those guidelines, even though that was what was requested. So the child support was entered separately from what was done in front of a judge. The issue here is that both parties are not going to agree on what it should be, i.e. one by the guidelines, the other thinks it should be more. That being said, the one that wants more can delay this until who knows when just to maintain the current amount as it is more than what it is supposed to change to based on the guidelines.
If your child support terms are in a document that has a judge’s signature and a file stamp at the top of the first page, then it is a court order, even if entered by consent.
If both parties cannot agree to a modification, then the only way to have a modification done is to go to court and have a judge decide.
Anna Ayscue
Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest
Rosen Online | Unlimited confidential access to a North Carolina attorney for $199/mo - click here
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 only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.
Wow! So, even when circumstances change related to a child graduating from high school we would have to go back to court because one of us doesn’t want to go by the guidelines and the one that does go by the guidelines would be held in contempt? Seems to me like that puts all the control in the hands of the parent that doesn’t want the child support to drop because of those changes. So, I guess my next question is if we don’t live in the same county that the original order was filed in, do we have to stay in the same original county or do we have to file in the county of residence?
A motion to modify a child support order must be filed in the county where the original order was entered. If neither parent lives in this county anymore, then you can also file a motion to change venue to have the motion heard in the proper county. Otherwise, it is fine for the motion to modify to proceed in the original county.
Anna Ayscue
Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest
Rosen Online | Unlimited confidential access to a North Carolina attorney for $199/mo - click here
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 only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.
Okay, thanks! Still confused, concerned about having to resubmit when a change like that is made, i.e. when a child graduates from high school. Does that mean if there is only one child and they graduate the child support will still have to be paid until a new order is put in saying there is no more child support to pay since the child graduated from high school? As the person getting paid why would I even agree to that? Just seems odd that we would have to go back to court to make that change when there are no more children that meet the support needs. Does that make sense what I am asking?
In the case where one child is subject to a child support order and that child reaches age 18 and graduates from high school (whichever comes later), then child support payments terminate without a court order and no motion to modify is necessary.
If the payor is having his/her wages garnished, then a court order would be necessary to terminate the child support, and this would be done by filing a motion to terminate.
Anna Ayscue
Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest
Rosen Online | Unlimited confidential access to a North Carolina attorney for $199/mo - click here
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 only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.
Thank you for that, I really appreciate your help with this. Does that mean it is different when there are multiple children? Meaning… one 18 and graduating, but there are still two remaining to be covered with child support that the change would have to go through the court, whether it be another consent order or in front of a judge?
In the case of one child aging out of child support (child turned 18 and graduated high school) and minor children remain, then a motion to modify child support must be filed and a new order entered. The new order can be by consent, but either way, the new amount in a new order must be signed by a judge.
A child aging out, with minor children remaining, does not automatically terminate child support as to that child or automatically change the child support amount.
Anna Ayscue
Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest
Rosen Online | Unlimited confidential access to a North Carolina attorney for $199/mo - click here
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 only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.