I recently filed to have custody changed. Custody was previously split 50/50, but there was a substantial change in circumstance and we returned to court where I was awarded primary
custody and the other parent awarded visitation every other weekend.
As a follow-on, I filed to have child support re-evaluated. I’ve been paying child support since 2010. The other parties attorney is now attempting to subpoena my 2010-2012 income information. He says “if she receive(s) or (d) a bonus these years…their (sic) is ample authority for averaging in the years past.” So it appears that my ex is attempting to garner even more money from me dating back to 2010-2012.
Is this legal? I was told that once child support is accrued and paid, it cannot be changed. So there could be a change in child support because of the new custody order, but not from years past. I was also told that support could only be re-visited every 3 years unless there was a change in custody. So I took that to mean he could not ask for child support to be recalculated until Dec 2013 since our last order was Dec 2010.
The 3 years is for an automatic review. Anytime there is a significant change in circumstances, ie overnights with parent, a specified % of income increase or decrease, loss of employment NOT voluntary, you can request a modification. The guidelines are on the NC child support website under “parents”
In general, when there’s a previous order or valid separation agreement then retroactive child support is limited to either what was called for under that previous order/agreement or to the actual expenses (which requires that the amounts actually spent be determined). And I think they can order one spouse to pay for their share of emergency expenses that aren’t normally included in child support (e.g. major medical expenses). So they probably can’t go back and expect you to pay more for time before the start of the support case. On the other hand, the court can order “prospective” child support starting from the date when the case was filed, even if that date is in the past.
The averaging is more likely to try to raise your income when calculating child support going forward, to raise your obligation or reduce your spouse’s obligation. If getting the bonus is a regular thing then this is more likely to be allowed, while if it was a one-time bonus with no likelyhood of a repeat then it’s probably less likely.
Since the visitation schedule changed, this would be a substantial change for modifying child support. The opposing counsel is probably only seeking your income information to help establish your income for the ongoing support, not to seek retroactive support since there was already an award in place.