Child Support: Deviation

Child support hearings can be a stressful and frustrating time in one's life. It can be very taxing on both parties involved and their children. It is important to remember the advantages of having experienced and effective legal representation on your side. There are a number of factors in deciding on how child support will be calculated by a Judge. In North Carolina, child support is calculated primarily by gross monthly income (pre-tax salary or wages) of the parents versus what is paid out as far as other child support, health insurance, and daycare. North Carolina Child Support Guidelines determine the formula of how much a parent will owe.

Courts may deviate from these guidelines based on the best interest of the child. Proper notice must be given to the Court and opposing party should one party seek a deviation. Local Rules of Court and Civil Procedure dictate timing of the notice. As these deadlines may differ from state to state and county to county it is important that a North Carolina Family Law attorney review these local rules. According to North Carolina General Statutes §10.13, Upon its own motion or motion by any party, a court may vary from the guidelines if the application would not meet or would exceed the reasonable needs of the child or would be otherwise unjust or inappropriate. The court determines when it is appropriate based on the arguments of the parties and the parties' attorneys. At times, the court can grant deviations due to third party contributions. In the case of Guilford County ex rel. Easter v. Easter, 344 N.C. 166, 473 S.E.2d 6 (1996), the North Carolina Supreme Court upheld a child support amount that was less than that recommended by the guidelines based on evidence that the children and custodial parent were supported by their grandparents. The grandparents were paying the rent and medical bills in addition to clothing and haircuts. This shows that the children's needs were adequately met and that the support ordered by the court would have been too high and thus unreasonable to the paying parent.

In the case of stepchildren and deviation from support guidelines, North Carolina Courts have not addressed the issue of stepchildren living in the home of the non-custodial parent. Given that our Appellate Court have yet to rule on the issue of step-children, the trial courts have final discretion. If the children are receiving benefits from the stepparent, some courts have held that deviation should be granted. In the case of Hartley v. Hartley, 184 N.C. App. 121, 645 S.E.2d 408 (2007), the court ruled that because the father of the children was fully able to pay child support and that the payments went to the custodial parent, his support should not be reduced. The children were receiving social security benefits from their deceased stepfather. These benefits were received directly by the children and deemed "adoption payments" because the stepfather adopted the children. If the trial court had found that the biological father was not able to meet his support payments, the deviation would have been justified due to the children having more financial support.

It is always best to seek legal representation of an experienced North Carolina Family Law Attorney in matters as important as your children; especially where calculations can go wrong if imputed incorrectly. A family lawyer is needed to advise their clients as to the options available to them in addition to filing appropriate timely paperwork with the courts. The best chance of a favorable outcome is by having legal representation in situations aforementioned.

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