Hello, I am in the middle of negoiations to have child support modified. My question is about income. I am a salaried plus commission employee. I have very irregular commission income. My question is how will my income be looked at by the court if we are not able to come to an agreement. Will they average the past two years or use year to date? I also have a second question, if i dont agree to the numbers that my ex’s attorney comes up with will i be forced to pay her attorney fees? I appreciate your advice!
*** Not a lawyer ***
From the North Carolina Child Support Guidelines: “When income is received on an irregular, non-recurring, or one-time basis, the court may average or prorate the income over a specified period of time or require an obligor to pay as child support a percentage of his or her non-recurring income that is equivalent to the percentage of his or her recurring income paid for child support.”
So according to that, they might average it (the time period isn’t specified), or they might calculate your child support based on your salary and then calculate what percentage of your salary is going to child support and then tell you to additionally pay that same percentage out of any comissions. How commonly each option is used I have no idea.
Note that if they go the percentage route and order you to pay (choosing a random number) 15% of any comissions, then even if your salary goes up so child support is now only 10% or down so child support is now 20% you’d still have to go by the order and pay 15% of the commissions. Unless, of course, the order contains instructions on modifying the comission percentage based on salary changes.
As for attorney’s fees, I have no idea about any fees during the pre-court negotations. Do you have a separation agreement with any language relating to attorney’s fees? For the court case itself, looking at NC G.S. § 50-13.6 it sounds like the court would have to find that you were refusing to pay adequate child support at the time the modification case started (or, if you’re the plantiff in the modification case, that the case was frivolous) before they could order you to pay her fees. I’d hope that if you’re currently paying as specified in the existing order that it would be assumed that you’re not refusing to pay adequate support. Again, though, if your separation agreement addresses fees that might make you liable even if the court couldn’t order it. Or there could be other ways for them to get you.
The court will make a determination about your income based on the evidence presented and may average years or months depending on what the judge finds is most representative of your monthly income. If you are unable to reach an agreement before court, you may have some exposure to attorney’s fees. You should make sure you are paying a reasonable amount of child support based on your calculations. You should read our article on attorney’s fees in child support cases for more information.