Deviation from support guidelines

North Carolina Divorce Law Divorce and Separation Answers
1

Hi AnnieKelly,

In terms of imputing income to an individual, the North Carolina Child Support Guidelines commentary says, “[i]f either parent is voluntarily unemployed or underemployed to the extent that the parent cannot provide a minimum level of support for himself or herself and his or her children when he or she is physically and mentally capable of doing so, and the court finds that the parent’s voluntary unemployment or underemployment is the result of a parent’s bad faith or deliberate suppression of income to avoid or minimize his or her child support obligation, child support may be calculated based on the parent’s potential, rather than actual, income.” So, unless your husband can prove that his former wife is deliberately suppressing her income, (i.e. by turning down higher paying jobs, or quitting a higher paying job just to get more child support), then it is unlikely that a court will impute income to a person who is currently working.

It is unlikely that the North Carolina court is going to make a cost of living adjustment for your husband in another state when the child is living in North Carolina.

If your husband has continued to provide child support in his absence, then he probably won’t have to pay any retroactive increases due to the continuances.

I do think it is worth talking to an attorney about the specifics of your husband’s case, since you are dealing with a modification.

Best wishes to you and your husband,

Shonnese D. Stanback
Attorney
The Rosen Law Firm
4101 Lake Boone Trail, Suite 200
Raleigh, North Carolina 27607
919.256.1534 direct voice
919.256.1667 direct fax
919.787.6668 main voice
919.787.6361 main fax
NCdivorce.com
email: sstanback@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.

2

After a 3 year review, the child support my husband pays is to be modified. They want to increase it by over 50%. He is currently in the army and in Baghdad so I am trying to deal with this myself and I have 3 questions.

  1. This is an IV-D case. They are calculating the support based on the mother earning minimum wage. For the last 4 years she has only held minimum wage jobs. For many years prior to that she was a paralegal and earning substantially more than minimum wage. Is there any hope of getting a judge to impute a reasonable income for her?

  2. My husband and I live in the DC metropolitan area and the cost of living is significantly higher here than it is in Dare County, NC (where the mother and child live). Is there any hope of getting a judge to adjust his salary to Dare County dollars for the calculation?

  3. The original motion to increase the support was filed in January 2003 but the case has been continued until November due to my husband’s absence. Once we go to court, will the increase be retroactive to January?

The first two items are the only two that I can think of that could justify deviating from the guidelines. If there is no hope of either is there any point to retaining an attorney?

TIA,
Annie Kelly