Child Support Questions

North Carolina Divorce Law Divorce and Separation Answers
1

Hi,

My ex-wife recently got married. Although she is not working (full-time student) the man she has married is very well off and I suspect that she would never have to work a day in her life. I would be OK with this but the child support amount that was set that I had to pay was based on an income that I no longer make as I am now being garnished for student loans. In addition, it has come to our attention that my ex’s husband may own several rental properties in a vacation hot spot. So, my questions are:

  1. Can I get an adjustment on my child support if my wages are being garnished for student loans (originally not taken into account as they were in deferment four years ago)?
  2. If my ex is listed as co-owner of any of the homes that her new husband owns should be claimed as income on her part?
  3. If my ex is making any income at all from any source is she obligated to tell me? If so, then what if she doesn’t?

Thank you!

2

You can seek to modify an existing child support order if has been 3 years since the entry of the last Order, and there is a 15% change in the amount of support based on new income numbers. This would constitute a substantial change in circumstances which would merit a modification. If your wife is getting rental income from property in her name, that does count as income.

3

Additionally, as the court will consider both yours and your ex’s incomes for this proceeding, if your ex is hiding income to obtain more child support, that is not legal. Your ex can be penalized for not being honest about her income.

4

Thanks Crystal. Just to be clear on one thing - if my wages are now being garnished for student loans (to the max 15%) this in itself would be enough for me to be able to ask for a modification in the amount of child support each month?

Second, if my ex refuses to tell me if she is part owner of any of the rentals that were originally owned by her new husband can she be compelled to tell me? Yes, I do not trust her at all considering that she never even told me that she was living in a house that was owned by her now husband before she was married (and who knows if she was paying any rent at all then).

Thanks again.

5

As far as if that amount is enough to file for a modification, you will need to see if the end result of your child support would change by 15% if you factor in your new income figures. If that change exceeds 15%, then you should file. I realize that you at the present time do not really know what your ex’s income is. You should file a proper motion with the court to modify support. If you do that, she will have to disclose all sources of income (including any rental income) that she receives at present time. You will need to file discovery.

6

Thanks crytal Just clear one point of children.I like your post.

7

Hi Crystal,

You covered most of my questions (thank you!) but believe it or not I have three additional items I was wondering if you could help me with in determining child support modification -

  1. As mentioned, I believe my ex is a full-time student at this point but I am not sure. She was originally going to graduate in 2009 but she changed her major. For all I know she may have graduated with her bachelor’s degree in Biology at this point as the only thing she was concerned about telling me was that she has decided to go on to get her Master’s degree. At this point, can income for what she should be making with a four year degree be imputed to her? Since she is now married and has no need to work she may decide to be a perpetual student for the rest of her life. Your thoughts?
  2. My ex decided to move to Winston-Salem to go to school at UNCG but as it turned out this was only to be closer her to her now husband who was supplying her with the town home she was living with (I found out through on-line tax records that it was his house). I have never been compensated for the lose of visitation/additional car/gas expense it now takes me to pick up my son (3 hours round trip). Obviously driving three hours during the work week is next to impossible. I never agreed to the move; she just told she was moving a week before it actually happened. Can I be compensated for this in any way due to loss of visitation/additional expenses in driving, etc?
  3. Now that I am happily remarried, can my ex go after my wife’s income in determining the amount I pay in child support? My ex told that she was going to do this if I told her I was going to try and file for a modification of child support but I always believe in trust but verify. Because of this I filed my 2010 tax return married but filling separately. Is this true or false?

Thanks again.

KC

8

The court will not impute income to a parent unless a parent is found to be depressing their income in bad faith so as to avoid their support obligation. As long as she is in school or a stay-at-home mom, and is not doing so for the purpose of not having to contribute financially to her child, then there will be no imputation of income.

You might be able to re-coup expenses related to transportation costs. The court can include travel expenses as an extraordinary expense in the calculation of child support, so you might consider asking for this when you file your modification.

No, she cannot go after your current wife’s income. Step-parents have no legal responsibility to support step-children. The court will look at your income and your ex-wife’s, along with obligations to other children you each may have, and costs of child care, insurance, etc., to determine the amount you will owe her.

9

Hi Crystal,

OK, I went down to the courthouse and filed a modification of child support and I have some follow up questions I was hoping you could answer.

  1. What are the parameters for requesting child support modification? Does three years need to happen before the last court order? Is it three years and 15% change in income? Or can you file for modification at anytime there is a significant change? If so what is significant?
  2. In my original child support order that was filed four years ago (from PSS hearing) and made permanent three years ago I was ordered to pay 114 a month for daycare (my portion). However, I know that my son has not been in daycare since August 2009 when he started elementary school. Can I go after back child support (24X114) for her still getting this even though my son was not attending daycare? In my request for modification I am asking that this amount be removed from my obligation.
  3. I firmly believe that my ex was having her rent and all utilities paid for by her now husband since she moved to Winston-Salem back in August 2009. Since she was imputed income at the child support hearing (the judge determined she quit her job to get more child support) of around 2300 this would give her increase income by over 50%. If she was hiding this can I go after her to recover back child support?
  4. As a follow up to number 3, I doubt she will be forthcoming in this information. Can I request discovery to see the leasing agreement as well as her banking statements showing that she has been paying rent, utilities, etc.?

Thanks again in advance.

10

  1. Three years since your last order, and the 15% differential means that there would be a difference of 15% or greater between the amount you are currently ordered to pay and the amount you would now be ordered to pay under the guidelines, using the new income figures.

  2. You can file a motion to modify support now, using present incomes and expenses. If you can prove the child was not in daycare for the time you were paying, you can attempt to recoup that money, by asking that the court account for overpayment moving forward, overtime (deducting a bit each month until recoupment is complete).

  3. No.

  4. No, you cannot get discovery for those sorts of things. Her expenses (other than daycare) are irrelevant to the child support case, only the incomes of the parents and expenses related to the child (health insurance and daycare) are relevant in a guideline case.