Temporary custody order doesn’t address finances

1

Hi,

My ex-wife basically created a work of fiction disguised as a civil summons in order to take the kids away from me. Unless the entire system is corrupt beyond repair, which I don’t believe it is, there’s no way she can take my kids away. I have no prior record and I’ve never done anything to compromise their safety.

So much so that she willingly lives three doors down from me so we can allow our kids to go back-and-forth from house to house.

There is no child support paid because we had 50-50 custody so we just used to split the finances

Right now she has 100% custody until we settle this in court. If she wins, I will pay less than she will because it will be based on income, and right now she makes more than I do.

But we don’t know what the outcome is going to be. So we have absolutely no custodial agreement involving money at all.

She’s trying to go under the table I guess you could say and intimidate me into paying her a bunch of money that she feels I should pay her for child care expenses, but we do not have any sort of custody agreement yet. Nobody really knows who is going to pay how much, and the court has not presented or ordered an amount or a payment for me to give her.

She provided no receipts for the Items she wants to be reimbursed for, and of course I 100% will pay to support my children, I’ve never not paid. But I don’t have a court order to do so yet.

I cannot put together an accurate contribution based on the spreadsheet that she put together. It’s my understanding through my attorney that the court will order and confirm our new child custody financial responsibilities, and until that is confirmed, we have no payment agreement.

I am being advised not to pay anything because right now nothing has been decided as far as how much I owe. Our old custody agreement has been replaced by the temporary order, and probably because we’re not even in trial yet, the finances weren’t even addressed.

So it’s my understanding that no payments or activity involving finances should be taking place outside of the court, or under the table if you will, until this case is settled and new custodial financial terms are confirmed

Is that correct? Because she’s painting me to be a deadbeat that doesn’t want to contribute. The truth is, I’ll be the first in line at the courthouse with payments ready once I have been ordered by the court to do so and told how much to pay.

So I guess my question is, a temporary custody order replaces any prior custody agreement, correct?

So the only thing official regarding our custody arrangement is whatever is in the temporary custody order as of now, correct?

Going back to agreements in the divorce settlement, which states we just split the cost because the custody is 50/50, that agreement is dissolved and no longer valid because we do not have 50-50 custody anymore, is that correct?

Am I following good legal advice and should I continue to go through the court during this custody process, or should I just give her some approximate amount of money she claims I owe her?

Because legally and technically, I don’t owe anybody anything yet until the judge puts together an order that says the amount that I do owe now, and when it needs to be paid, right?

Sorry I’ve probably asked a very simple question using tons of words and paragraphs. I’m stressed out. Thank you!

2

You are correct that if no child support order is in place or there are no child support terms in a separation agreement, then there is no legal obligation to pay child support.

However, if custody has changed such that Mom has all overnights, then you would likely owe her support, including a division of uninsured healthcare expenses and work-related childcare expenses, if a child support order was in place.

Generally speaking, it does not make you look good if you do not offer to pay any child support on the basis that there is no child support order is place. Mom can get a child support award backdated to the date of the time she filed the claim for child support or motion to modify child support, and she could also file a claim for retroactive child support.

Not paying anything will likely not sit well with the judge. However, your attorney may have reasons for their advice to you which is different than what I am saying. Your attorney knows the details of your case whereas my information is based only on a general summary that you’ve provided.

You can use our NC Child Support Calculator to determine how much you should pay on a temporary basis under the temporary custody order.

Anna Ayscue

Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest

Rosen Online | Unlimited confidential access to a North Carolina attorney for $199/mo - click here

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 only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.

3

thank you!

i’m sorry, I forgot to state that, I have personally offered to loan her $1,000 until terms are created. It’s officially in my counter offer, basically stating, the defendant is wanting to advance the plaintiff $1,000 in the best interest of the kids until the final plan is approved by the court.

That way, like you said, the judge sees that although I’m trying to follow the steps of the court, I am also motivated to somehow contribute while this is all up in the air.

Please, if you don’t mind, let me know If that will look like a positive thing and will show that I’m not doing this out of malice.

Also, in our divorce agreement……we did have 50-50 arrangements with finances, but do those elements of the divorce agreement still stand and remain valid since no changes regarding finances have been rewritten in the new temporary custody order?

Meaning, do elements of my old agreement still stand and remain valid if they aren’t specifically mentioned in the new order?

Or does the new order just make the entire old custody agreement, all elements of it, no longer valid?

I’m pretty sure that it just replaces the entire order, not just specific elements of it?

Thank you so much for taking the time to address this and I will recommend this form to others!

Kevin

4

OK I just caught this. Final question.

There aren’t child support terms in a separation agreement, but there are 50/50 terms in the separation agreement, stating that we split expenses. So wouldn’t that be some sort of child support term? And if so, is the judge expecting me to follow it? And maybe that’s why she didn’t address it in the temporary order? Because it’s already in separation agreement and she expects me to keep following it unless she states otherwise?

5

If your separation agreement sets forth child support terms, then those child support terms remain valid and enforceable unless you enter into and execute an amendment to the separation agreement or a court order is entered for child support replacing the child support separation agreement terms.

At a minimum you should follow the child support terms of the separation agreement unless one of the above applies. These terms are not invalidated simply because a new temporary child custody order is entered.

It is likely helpful that you give your ex-wife additional money to help support the children if they are in her sole temporary custody right now. But you should not initiate a loan and expect reimbursement for expenses involving minor children.

Anna Ayscue

Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest

Rosen Online | Unlimited confidential access to a North Carolina attorney for $199/mo - click here

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 only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.