Modification of Child Support on Separation Agreement

I returned from a deployment in Iraq in February of 2010. During training for my deployment, my wife decided she didn’t want to wait for me for a whole year and filed for a legal separation. I had only a couple of days to review it and no time to hire legal representation before I had to leave for Iraq. In the separation agreement, I agreed to give her $850.00 per month plus half of our child’s extracurricular expenses in child support since I wouldn’t have any bills while I was deployed (we have 1 child). My ex and her attorney assured me that the amount could be lowered when I returned home and had to begin paying rent/utilities/etc again, or could be reduced if I should be unemployed for a time or making less money. Unfortunately, without an attorney to protect me, I ended up unknowingly signing an agreement that only allowed for the child support amount to INCREASE if I should make MORE money, but not be lowered if I made less. A horrible mistake on my part, but I had trusted in her word.

After I returned home I had to move from North Carolina to Tennessee to live with a friend as I had no home in NC to go back to. My ex and daughter remain in North Carolina. I was unable to find a job for 4 months and couldn’t pay $850.00 per month in child support, so I sent what I could and begged my ex to allow me to modify the separation agreement. She said it wasn’t her problem that I couldn’t find a job and threatened to sue me if I sent any amount less than $850.00. Finally I found a job, but it’s $300.00 base salary per week plus commission. The commission sales are poor and I’m trying desperately to find another job. I’m still trying to amend my separation agreement so that I’m no longer paying $850.00 per month in child support, as I just can’t afford it, even with this job. The entire time I was unemployed, my ex refused to listen to my pleas to negotiate a lesser amount in child support and kept enrolling our daughter in the most expensive schools and classes she could find, telling me I was obligated to pay half on top of the $850.00. Obviously, I fell behind in the $850.00 ++ payments but I continued to send her as much as I could. Unfortunately, my ex makes a lot more money than me and while I was deployed and paying her that money she became accustomed to an extravagant lifestyle. She goes on several expensive vacations a year and buys the most expensive designer clothing and shoes for herself. And every month she adds up back child support for the money I haven’t been able to pay and I feel like I’ll never get caught up, no matter how hard I try or how many jobs I work. I’ve already given her so much…I gave her everything in our house without fighting her for it because I was going to be overseas for a year and had no where to store it. I came home to a truck and a garbage bag full of clothes. She got everything else.

By some miracle, my ex finally agreed today to entertain the notion of negotiating the child support amount, but I don’t have the money to hire a lawyer. She said she would be willing to settle it outside of court, as long as everything was filed and documented properly. I need to be able to prove to her how much I can reasonably afford to pay…and prove that it’s fair by the state’s standards…or she’ll never agree to any lesser amount. My question is: how do I calculate what I should be paying in child support when I work off a $300 base plus commission? I never know what my commission will be, if any, and I’ve only been at my job for 4 months. If it went to court, would the judge order me to pay based off what I was making during my deployment or what I make NOW? It’s much, much more than a 15% difference. I suppose I need to calculate by North Carolina standards, since that is where our legal separation agreement was filed and I have a feeling she won’t agree to anything by TN standards, where I’m employed…(unless of course it’s higher than what NC says I should pay). I just want to set a fair amount so I have money to survive on, as well as provide for my daughter. I have obtained a contract amendment form from an online legal website but I’m unsure of what to offer in child support since I don’t know how to calculate it on a commission sales job. Also, can I amend the agreement to go back to the date that I returned from my deployment, when I was unemployed?

Am I going about this the right way? Can I draw up a contract amendment myself, offering her an amount in child support based on North Carolina’s guidelines and if she agrees to it, file it myself? I am so broke right now…any advice you can offer will be appreciated.

You may make a motion to move the case to TN, as jurisdiction for a child support case is proper in the state where the obligor lives. In NC the court would use your base salary, plus an average of your last 4 months of commission, I cannot advise you on the way this issue would be handled by the TN courts.

The agreement will not be amended retroactively. You may draw up your own agreement.

Thank you Ms. Clarey. I can’t tell you how grateful I am of this service you are offering. Just a few follow up questions:

  1. How would I make the motion to move the case to TN? Where should I start?

  2. If the agreement will not be amended retroactively, what percentage MORE than the calculated child support amount (based off my current income) should I expect to pay to get caught up in back child support?

  3. In the event my ex refuses all of my offers and we continue to haggle over this for months…and all the while I can only pay a portion of the child support I agreed to the separation agreement…what can I do to get a judge involved (in NC…who can review my situation) so that this doesn’t drag on indefinately, continuously collecting more and more back child support based off an income I no longer have?

Thank you, again, for your time.

The motion to move the case to TN would be filed in the county in NC where the action is pending. The judge will determine the amount of arrears, if any. A judge will become involved when you file your initial motion to move the case.