Child Support Modification Question - New Child

North Carolina Divorce Law Divorce and Separation Answers
1

My DH recently went to court over CS. Long story short, an amount was set by the judge that we did not agree with. Our attorney told us not to stress about it because in the fall, we would be returning to court to file for a modification due to our child being born.

I did some research, and read the guidelines for the state of NC, and it clearly states that the birth of another child is not in and of itself, a sufficient change in circumstances to request a modification. I also just found out that our attorney had also told my DH that we would need a new attorney in the fall when we file for the modification. I have a feeling that this is because he is aware that it is not possible for us to file for a modification, despite the fact that he originally assured us we could.

My DH intends to return to mediation with his ex to ask for increased visitation in the next month or so. I did the math and if he is able to get the extra time he plans on asking for, he will have over the 123 nights required by NC to have CS calculated by worksheet B. It was calculated using worksheet A previously.

DH and I were not shown the worksheet used to determine the CS, but from my calculations, I am under the impression that the amount we pay for health insurance was not included, even though my DH’s ex included her child care costs. The worksheet used by the judge was created by his ex’s attorney.

Also, I have applied for a subsidy for my DH’s daughter’s childcare costs through my employer. If approved, they will pay the childcare a portion of the costs directly, this will decrease his ex’s childcare costs.

So my question is, based on the above, the possible increase in visitation, the health insurance premium, the decreased childcare costs and the new child, can DH file for a CS modification in the fall, even though they just had the CS determined in court just a few months ago? If DH does not get the change in visitation, but the other three occur, can he file for a modification?

2

Also, if we do file for modification, we’ve decided to try and do it through CSE and not with an attorney. Is this a good/bad idea?

3

You should have gotten a copy of the worksheet done to calculate child support. If the information is incorrect, AND you’re having another child, then I would see yes…there is cause for modification. The health insurance payments should be shown on your husband’s side of the column.

As far as visitation goes…that is a separate issue. It’s a part of the custody/visitation issue. If you want more time with the child, then you have to file for more visitation. I would do that first. Then if you’re granted more time, then when you go to modification, you have the extra overnights to present…which goes into the formula too.

4

Child support is modifiable based on a substantial change in circumstances which the guidelines define as the passage of three years and a difference of 15% or more between the amount of child support payable under the existing order and the amount resulting from the application of the guidelines based on the parent’s current incomes.
It sounds like the order issued in this case was an order for temporary child support, in which case the result is different. Temporary child support is put in place for a temporary period to ensure the child’s needs are met during the pendency of the custody action. If permanent custody has already been determined, I see no basis for your spouse to modify custody (also requires a substantial change), and therefore support would remain as is.

5

Custody was agreed upon by both parents in mediation. DH was told by the mediator that at anytime it could be changed as long as both parents agree to the change. Is this not correct?

I am under the impression that the support order entered into is not temporary. Will DH have to wait three years regardless of cirumstances to have the CS modified? Based on the different things I mentioned, the amount of CS could change by as much as 50%. Is it still not a substantial change in circumstances since it has not been 3 years?

6

Anytime both parents agree to modify custody it can be modified. If you are not interested in allowing your ex to have the additional time he is requesting you are under no obligation to agree to the change.
If the custodial arrangement changes and the worksheet would change child support can be modified. I would suggest that you attempt to revisit child support in mediation when you revisit custody and try to settle both issues.