If there is a court order related to child support, the payments will continue to be owed, until the court order is modified. If custody has changed substantially since the entry of the order, you can ask the court to modify the child support order.
Lisa M. Angel
Board Certified Family Law Specialist
The Rosen Law Firm
4101 Lake Boone Trail, Suite 500
Raleigh, NC 27607
(919) 781-1741 direct voice
(919) 256-1660 direct fax
(919) 787-6668 main voice
(919) 787-6361 main fax NCdivorce.com
email: angel@rosen.com
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.
Thank you for your reply. If I understand you correctly, I can ask for abatement in a modification of child support? Is there any specific case law to support this?
If I understand you correctly, you are asking about Retroactive modification of Child Support. In NC, child support is not subject to retroactive modification. Once a child support payment is due, it is vested and cannot be modified. See NC general statue section 50-13.10(a). There are exceptions authorized by the statute. Including the filing of a written motion to modify before payment is due and recognizes another exception when the obligor suffers from a physical or mental disability or other compelling reason preventing the pre-due date filing as long as the obligor promptly files a motion to modify after he or she is no longer precluded. (50-13.10(a)(1). The statute also provides that payments are not past due and no arrearages accrue…while the child lives with the supporting parent pursuant to a court order or agreement of the parties…(50-13.10(d). Hope this helps.
Deborah M. Throm
Rosen Law Firm
1829 E. Franklin Street, Bldg. 600
Chapel Hill, NC 27514
919.265.0017 direct
919.321.0780 main voice www.rosen.com
Email: dthrom@rosen.com
4101 Lake Boone Trail
Suite 500
Raleigh, NC 27607
919.256.1544 direct
919.787.6668 main voice
You asked for case law about your position: See Orange Couty ex rel. Byrd v. Byrd, 129 N.C. App. 774, 384 S.E.2nd 48 (1989), Holding contra due to factual issues, but talks about striking arrearages. Older case, VanNynatten v. VanNynatten, 113 N.C. App 142, 438 S.E. 2nd 417, (1993), determining that no compelling reason existed for retroactive modification despite defendant’s arguments…) Of course, do not go into court arguing this without seeking help from an attorney. This is only intended as legal education and intended to guide you to the information you are seeking. Good luck.
Deborah M. Throm
Rosen Law Firm
1829 E. Franklin Street, Bldg. 600
Chapel Hill, NC 27514
919.265.0017 direct
919.321.0780 main voice www.rosen.com
Email: dthrom@rosen.com
4101 Lake Boone Trail
Suite 500
Raleigh, NC 27607
919.256.1544 direct
919.787.6668 main voice
Does North Carolina allow, and/or is there case law to support the abatement of child support expenses when a child is in the custody of the non-custodial parent for more than 7 consecutive days?
Background: We were divorced in texas and granted joint custody with children residing with her out of state. The Jurisdiction of the children’s welfare was changed to North Carolina. I live in Washington state and the children reside with me 8-10 weeks a year.