Unfair Child Arreages........How do we interpret

North Carolina Divorce Law Divorce and Separation Answers
1

This is an insert from the divorce agreement…

It is understood by the parties that the reasonable needs of the children can be expected to increase in the future, taking into account the effects of inflation as well as increased costs and expenditures necessary for the children even without inflation as they are growing up. It is also contemplated that the income and assets of the parties will increase in the future. Based on this, the parties wish to provide a mechanism for increasing child support on an annual basis for the benefit of the children without having to return to court for a judicial determination of the same if it can be avoided. The parties agree to review and recalculate child support on an annual basis beginning August 2005 and each year thereafter by exchanging tax returns including all attachments (W2’s, 1099, etc.) and applying the North Carolina child support guidlines then in effect.

Question: (Child support was set @ $1500 for two kids a month) to be recalculated every year according to the above statement.

Both the ex husband and ex wife exchanged tax returns every year starting August 2005 and agreed on a monthly child support amount based on the child support calculator. In the last three years, the ex husbands through no fault of his own has been unemployed, layoff and or working jobs that pay substantially lower than was he made when the child support amount was set. He is deligently trying to find a job to align with his previous financial background, the economy is playing a big role in preventing that.

Please also note, that for the last 2 years one child has lived full time with the father.

Now, since the father has remarried, the ex jaded wife decided to file an affidavit declaring that she is owed $54,000 in arrearages bases the original set amount for $1,500 a month negating that not only did she agree each year after 2004 with the child support set each year basis the child support calculator but chose not to say anything until after she found out we were engaged that she felt she was owed this amount. Not even so much as to back out 1/2 the support for the one child that has been living with the father for 2 years.

WHERE DO WE STAND? I know that when you read through the insert above it implies that the child support calculator should be used for cases of increased child costs, inflation, etc

BUT

Doesn’t it also protect the father from only have to pay what he is obligated to pay basis the child support calculator as long as the parties agreed each year after exchanging tax returns? This is where the confusion comes in. Even our own lawyer is confused here in SC (divorced filed in NC). How is this interpreted?

And if the mother didn’t agree to the new child support arrangement each year, shouldn’t it have been her due diligence to go to child services at that time to complain AS opposed to when she got pissed off that he EX Husband was engaged?

I need help with clarification. My new Husband almost went to jail when the court hearing was held in January but was continued so we can build a case.

The new court date is at the end of this month and I am getting extremely anxious for answers. PLEASE HELP.

Thanks so much!!

2

What support has he paid in the last 3 years?

3

$14,400 total for the past three years.
First two years were paid in full for both alimony and child support.

$600 for year three for two children. (Mother was drawing unemployment but not sure of the amount and the father’s Gross was around $40,000)- he was also paying $600 a month in alimony during year three
$300 a month for years four and five for one child (the oldest child came to live with the father). (Father’s gross income in year four was $5,000 - he was unemployed but earned a little at odd and end jobs and year five he earned around $20,000- combination of unemployment and 1099 landscaping work).

Current gross montly income= $2,000.00 a month and he continues to pay $300

4

If support was not paid according to the amount in the agreement, or subsequent amounts calculated the payor may be on the hook for arrearages, however one can argue that the payee accepted the lower amounts.

5

But from where we sit, we paid exactly what we where suppose to pay based on the child support calculator as stated in the agreement. The payor only makes a 1/4 of what he made when the agreement was set up. Please explain how he can be on the hook for arrerages.

My husband distinctly remembers revising the divorce agreement before it was signed to make sure that the child support could go both up or down depending on income. We are confident that the ex’s wife lawyer phrased the child support segment to create ambiguity. At first, the agreement was written to have a minimum threshold of $2,300 that was non-modifiable. My husband asked them to change this language to reflect something that was more reasonable and language stated in an earlier post is what they come up with. No wonder our lawyer is confused.

We don’t have any money to pay this women. We have always been fair and paid as we believed the agreement was written.

The only way we can help is to continue to pay what is required of us by the child support calculator OR have the youngest son come live with us. I have no problems with that. I am the step mom and primary financial supporter for right now but I refuse to pay more child support than what is required. We don’t have it!! Furthermore, I cannot contribute to a woman that refuses to work even though her son is 12 years old, she holds 2 degrees and very capable of doing so. Not to mention, she is an out right alcoholic. I cannot help support this.

So again, can you please decipher how he can be on the hook for arrerages? Thank you so much for your time.

6

If he did not pay the minimum amount set forth in the agreement he could be on the hook to make up for the unpaid support. I do sympathize with your situation and sincerely hope the judge does as well. I wish you the very best.

7

Hi Erin,

I understand what you are saying but there is no verbage on “minimum amount”.

Insert from the agreement:

  1. Child Support- Husband shall pay to Wife, for support of the children, $1,494.00 per month beginning on September 1, 2004. This amount shall be paid through the Clerk of Court/Child Support Enforcement division in the appropriate county. However, until such time that Wife can establish regular payment through the Clerk of Court/Child Support Enforcement, Husband shall make his Child support payment directly to Wife.

(see modication insert in previous post)

Please note: The wife never set up the child support payments through the Clerk of Court/Child support Enforcement. Husband always paid her directly basis the child support calculator.

Does this change anything? Thanks so much for your help.

8

In my opinion the minimum about is the originally established figure of 1494.