In this issue we address how the use of prenuptial agreements is growing in popularity. We also consider how termination of parental rights actions are being used in the context of grandparent visitation. We address various financial consideration as they factor (or maybe not?) into divorce proceedings.
Click here to view and print our Charlotte Divorce Attorney Blog Family Law Newsletter – Winter 2011:
CHARLOTTE DIVORCE LAWYER BLOG FAMILY LAW NEWSLETTER WINTER 2011
In the case of Keaton v. Keaton, the North Carolina Court of Appeals reviewed the trial court’s determination that neither party met their burden of proving that there had been a substantial change in circumstances affecting the welbeing of the minor child. The parties separation agreement, which was incorporated into their Judgment of Absolute Divorce, provided primary child custody of the parties’ minor child to Mom with visitation to Dad.
The North Carolina Court of Appeals considered State v. Bryant. This case was on appeal to address the issue of Father’s child support arrears. The case involved the registration of a foreign judgment for divorce which also contained provisions for child custody and child support. The foreign judgment was orginally entered by a trial court in Michigan. The foreign judgment called for Father to pay $486 per month to Mother for child support.
The North Carolina Supreme Court remanded the case of Underwood vs. Underwood to the North Carolina Court of Appeals for further consideration in light of the ruling in Walters vs. Walters. The North Carolina Court of Appeals decided that its first decision stands and that the case is reversed and remanded to the trial court. In the first opinion, the N.C. Court of Appeals ruled that hte trial court did not have the ability to make a modification of alimony payments where the payments were made pursuant to a Consent order and when the alimony payments are reciprocal consideration for equitable distribution provisions.
In the case of Webb v. Webb the trial court awarded Wife $5,000.00 per month in permanent alimony and partial attorney fees. Husband appealed to the North Carolina Court of Appeals and argued that the Court did not make sufficient findings of fact to support an award of permanent alimony and that the Court made an error in calculating his income.
Child care costs for employment or job search are included in the calculation. Child care costs for other purposes (such as for education) may formulate a basis for deviating from the child support guidelines. Also, the child support guidelines have been updated to include the income levels at which the child care tax credits provide a benefit to the custodial parent.
In determining the amount of child support for other children, which amount will be deducted from the gross income for that obligor, only the amount being paid for ongoing child support will be deducted. Portions of payments which are being paid for arrears will not be deducted from that obligors gross income for the new calculation.
The committee recognizes that multiple family and multiple child situations can create complex calculation problems. The revised guidelines bold the previously language which indicates that such situations may be appropriate for a deviation from the guidelines. A clause was also added which indicates that is the best practice to, if possible, hear multiple cases involving the same party(ies) during the same court setting.
There are several specific things which are now explicity excluded from “income“, they are:
1) Child support payments received on behalf of a child who is not a party to the instant action;
2) The employer’s share of social security and medicare payments;
3) Health, life or disability insurance premium payments which are paid directly to an insurance carrier and not withheld from wages; and
The official federal poverty level from 2009 is now the standard: $902.50 net per month or $999.00 gross per month. Now when using Worksheet A, other extraordinary expenses (in addition to payment for child care and health insurance coverage for the children) may be an adequate basis for deviating from the guidelines if the obligor’s income falls within the shaded area.
The revised North Carolina Child Support Guidelines will have a new section which addresses retroactive child support. The guidelines will allow for retroactive child support to be determined either by applying the guidelines formula or by consideration of actual expenditures of the custodial parent. If retroactive child support is determined by the guidelines formula, then the formula will be run with the variables (parties’ income, health insurance costs, work related childcare costs, and overnights) as they were on the first date for which retroactive child support is sought. For example, if the custodial parent is seeking retroactive child support back to January 1, 2009 then the formula would be run using the variables as they were on January 1, 2009.
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