Jim Siemens

Certified Family Law Specialist

Federal law requires that states receiving some federal public assistance and child support enforcement programs establish child support guidelines.  North Carolina receives both, and has therefore established the North Carolina Child Support Guidelines the Guidelines).  Federal law also requires that the Guidelines be reviewed and updated every four years to reflect economic growth, or lack of growth as we are currently experiencing, and what that means as far as the cost of raising a child.  Periodic review of the procedure behind using the Guidelines is a useful chance to smooth any wrinkles and speed bumps the previous version may have revealed.  From December 31, 2005 until December 31, 2010, we all worked with (and deviated from) the 2006 Guidelines.  As of January 1, 2011, the 2011 Guidelines apply.

For a look at the new Guidelines, including the parts that don’t involve the numbers,  click here.

So what’s new since 2006?  Here is a brief, 8 item list of substantive changes in 2011.

1.  Child Support in Domestic Violence Cases.  The Guidelines are now presumed to apply in all cases when child support is ordered as a remedy in Domestic Violence Orders of Protection (i.e., 50Bs, restraining orders).

2.  Retroactive Child Support. As was stated in the 2006 Guidelines, a trial court may still consider whether ordering a non-custodial parent to pay retroactive child support (i.e., “back support”) is appropriate and then figure out how much it should be.  There are two clarifications to this principle: (1) Based on a case that came through the Court of Appeals in 2009, the Guidelines now have an added rule that when any award of retroactive child support is made in a situation where the parents had a valid and unincorporated separation agreement setting the payment amount, the award must be calculated to match the agreed upon amount.  And, (2) when a court decides that retroactive support is appropriate, it has to calculate the amount based on the Guidelines that were in effect at the time and based on the salaries of the parties at the time.  In other words, if a party gets child support for the calendar years 2005 to present, the calculation of the amount owed prior to January 1, 2011 will be done with the 2006 guidelines and old pay records.

3.  High Income Parents and Low Income Parents. As in the 2006 Guidelines, the 2011 Guidelines apply to parties with combined monthly gross incomes of no more than $25,000.00 per month.  At $25,001.00 and up, it is considered to be a high income case, and a court is to set an amount of support based on the actual needs of the child.  The 2011 Guidelines simply clarify the 2006 rule with the actual wording of the statute: “…the court should set support in such amount as to meet the reasonable needs of the child for health, education, and maintenance, having due regard to the estates, earnings, conditions, accustomed standard of liv­ing of the child and the parties, the child care and homemaker contributions of each party, and other facts of the particular case.” (N.C.G.S. §50-13.4(c)).  For low income parents, the Guidelines have historically allowed an obligated parent to reserve a certain amount of income in order to ensure that he or she can cover their own basic expenses before paying child support to the other parent.  Application of the guidelines in these cases can be complicated, and a full discussion is not within the scope of this update.  Essentially however, the 2001 Guidelines allow the low income obligor to reserve $902.50 per month, and a minimum payment in the amount of $50.00 will be set for those who have an adjusted gross income of $999.00 or less.

4. Income in general. There are three areas of discussion regarding the definition of income for purposes of calculating child support.  First, based on a case decided by the Court of Appeals in 2008, the 2011 Guidelines specifically state that income received as child support for another child in the custodial parent’s household is NOT to be included as income.  Next, although the Guidelines have historically excluded most benefit payouts from being considered as “income”, the 2011 Guidelines get more specific and list the public benefits that are to be excluded.  Third, the 2001 Guidelines exclude from addition to a party’s income any payments made by an employer on an employee-parent’s behalf, directly to a third party.  For example, if my ex-husband’s boss pays for a disability insurance policy on his behalf, but does it outside of his paycheck and directly to the policy administrator, I can’t call the amount the boss pays to the policy administrator income.

5. Social Security. No real changes here, except for clarification of when a retired or disabled parent must continue to meet his/her child support payments.  If a child receives social security benefits because one parent has become disabled or has retired, and those benefits are more than the amount the disabled or retired parent would have to pay when the guidelines are applied, the obligation of the disabled or retired parent pays nothing.

6.  Preexisting Child Support Obligations. Under the Guidelines, a parent may deduct from his/her income any amount paid as child support for another child.  As of 2011, however, that deduction does not include payments made toward arrears on the obligation to that other child.

7.  Child Care Expenses. The 2011 guidelines clarify that child care costs incurred for purposes other than employment are not added to the calculation of child support.  These child care costs may be counted, however, if the parent who wants to count them has filed a motion to deviate from the Guidelines, and the Court finds the deviation appropriate.

8.  The Schedule. The “Schedule” is the numbers portion of the Guidelines.  It is a table that shows, based on the combined gross income of the parents with all credits and deductions, what economists assert is the cost of raising a child in 2011.  The most notable differences between the 2006 Guidelines and this current version is that low income families will not see as much of an increase in the child rearing costs as the number of children increases.  For higher income families, it appears that there is a greater increase in child rearing costs as the number of children increases.  The Schedule of Basic Support Obligations contained in the 2011 Guidelines can be viewed directly, beginning on page 7 of 18, by clicking here.