Job Loss, Child Support, and Alimony: Modifying Agreements and Court Orders

We, at Bender LeFante Law Offices, understand that life can throw a curve at you just when you think that everything is under control.  It is an unfortunate fact that the unemployment rate has been rising and that many people who previously paid child support and alimony in full and on time now have difficulties in paying what is currently owed.  The rights and responsibilities the payor and payee have are not as obvious as one might think.  Depending on various facts and situations, there can be very different results.

As you will see below, you can, possibly, represent yourself for a child support modification if it is a matter of filling out a form. However, remember, the court wants to insure that your children and former spouse have the necessary support to have their needs met.  Your desire to pay less money is not their mandate to lower child support or alimony.  Nor is your increased need an immediate right to an increase in support.  You must be able to prove how your change in income affects your need or ability to pay.  Even then, you have an uphill battle.

While we understand that your finances might make you wish to proceed without the benefit of counsel, you would be well served to have a consultation with an attorney. In that way you can understand your specific situation and what you will need to do to prevail.  In many circumstances it would be in your best interest to hire an attorney to present your matter to the court.  After reading about your options, call Bender LeFante Law Offices to understand how this information can apply to your particular situation.

I.  Modifying Child Support

Looking at a typical situation:

Parent A pays child support for two children.  The support is set according to the North Carolina Child Support Guidelines and the payor is up to date in paying support.  Parent A is laid off and is receiving unemployment compensation while actively seeking new employment.  The present child support obligation is beyond Parent A’s present ability to pay.  What can Parent A do?

If you have a Separation Agreement or Other Agreement

An agreement is a contract between you and your child’s other parent.  It is enforceable like any other contract.  If a party does not do what he or she is supposed to do under the terms of the contract, the other party can bring him or her to court for breach of contract.  If the court finds that a party has “breached the agreement” (not performed) the court can award money damages or, if the contract allows, specific performance (make the person do what the contract says) and, often, attorney’s fees.

Step One:  Read your agreement.  There may be a mechanism built in to your agreement to allow you to modify support if your income decreases by a certain percent.

If there is such a provision, make sure you follow the steps set out in the agreement to modify the amount of support.  Often times an agreement will set forth criteria to decrease the support under certain circumstances and then automatically increase the support later.  If you need help in interpreting the agreement you have, go see an attorney as soon as possible.  A short consultation should give you the information you need.  You may, also, need the help of an attorney to implement the provisions to decrease the support.

If your agreement has no provisions for modification, you may be in a difficult position and should see an attorney to explore your options.  It may seem that no such provisions exist but a statement such as one saying the support will continue until the first happening of any of the following which then lists different events including “A court ordering a different amount of child support”  gives a way to modify the support by filing a court action.  Any court action for child support can relate back to the date it is filed, so do not delay filing.

Step Two:  Call the other parent and see if you and the other party can reach a voluntary agreement changing the amount of support.  If you are able to reach an agreement, any change in your existing agreement must be in writing and notarized by each party.  You would be well served to have an attorney write the modification of the existing agreement.

Step Three:  If you are unable to reach an agreement with the other parent, or if there is no mechanism in place to automatically change the support, you will need to file a court action.  See the information below regarding court orders.

If You Have a Court Order, Including a Voluntary Support Agreement or Order Through Child Support Enforcement.

A court order is enforceable by the contempt power of the court.  If you do not do what the order says, you can be brought into court and be required to “Show Cause” why you should not be held in contempt for failure to comply with the order of the court.  Money damages and possible jail time could result.  If you are unable to pay the support ordered by the court, you must take some steps to protect yourself.

Step One:  Calculate support under the guidelines. An automated calculator of The North Carolina Child Support Guidelines is posted here. Click on the little icon that says “parents” from the home page and then click on “CSE Guidelines” from the left hand list of options.  Once there, select the proper schedule.  Schedule A (Primary Custody) is used if one parent has the children more than two-thirds of the overnights.  Schedule B (Joint/Shared custody) is used when each parent has one or more of the children at least 123 overnights.  Schedule C (Split Custody) is used where each party has custody of one or more children of the marriage.

If your new support obligation varies more than 15% from your present child support obligation, the court is able to modify your support, but you MUST MAKE A MOTION TO MODIFY the support or it will continue under the present order.

Step Two:  As stated above, call the other parent and see if you and the other party can reach a voluntary agreement changing the amount of support.  If you are able to reach an agreement, any change in your existing order must be in a court order and signed by a judge.  While you and the other parent may come to a voluntary agreement, unless it is entered by the judge, it does not change the order of the court; only a judge can change a court order.

If you and the other parent agree on a change, you can modify your order with the use of a form available on line,  AOC-CV-615 for a form entitled “Consent Agreement and Order to Modify Child Support Order”.  Fill it out, have each party sign it before a notary, and then submit it to the judge for signature. If there are problems having the court enter the order, or the matter is more time consuming or difficult than you care to handle, you will need to retain counsel.  See Step Three, below.

Step Three:  If you are unable to come to an agreement with the other parent, you will need to file a motion to modify your existing order. To modify an existing order you can go online form number AOC‑CV‑600 which is a “Motion And Notice Of Hearing For Modification Of Child Support Order”. Follow the directions and obtain a date to have your motion heard. If your issues are complex or the other parent is going to object to any modification, it would be advisable for you to consult with an attorney.

Step Four:  You will need to follow any local rules regarding child support and provide documents to the other parent and to the court.  Failure to follow the local rules can cause a negative result or have your matter thrown out of court.

Step Five:  You MUST provide the court with enough information to make a change in the support order.  It is not enough to ask the court to change its order without being able to prove that your income has changed and that you are unable to pay the current amount.  You will, also, need to show that you have not deliberately depressed your income to avoid a child support obligation. Last, if your children still have the same need, the court might not lower your support, even if your income has decreased.

II.  MODIFYING ALIMONY

The right of a party to receive alimony is determined as of the date of separation, but the amount of alimony to be awarded is determined by all the factors in existence as of the date the court enters its order.  Like child support, alimony can be set out either in a court order or an agreement, and each result can be different.

If You Are Paying Alimony Under An Agreement

The steps you need to follow to modify alimony under an agreement are the same as those used to modify child support as outlined above.

Step One:  Read your agreement.  There may be a mechanism built in to your agreement to allow you to modify alimony if your income decreases by a certain percent.

If there is such a provision, make sure you follow the steps set out in the agreement to modify the amount of support.  Often times an agreement will set forth criteria to decrease the support under certain circumstances and then automatically increase the support later.  If you need help in interpreting the agreement you have, go see an attorney as soon as possible.  A short consultation should give you the information you need.  You may, also, need the help of an attorney to implement the provisions to decrease the support.

If your agreement has no provisions for modification, you may be in a difficult position and should see an attorney to explore your options.  Many times parties negotiate alimony for a time certain and amount certain so that neither party can modify it.  If this situation is the one you are faced with, you will not be able to modify the support provisions unless the other party agrees.

Step Two:  If you reach an agreement to modify with your spouse, or if your agreement sets out the criteria and mechanism needed to modify the support, you need to have an attorney draft the modification to the agreement which needs to be signed and notarized by both parties.

Step Three:  Even if your agreement is non-modifiable, when faced with the reality of the situation, it may be possible to negotiate a reduction in amount of Alimony for an increase in time or some other adjustment.  It is in this situation that an experienced family law attorney can be of great assistance.

If You Have A Court Order for Alimony

Unlike child support, there are no statewide guidelines to determine alimony.  While alimony is based on need, there is, also a requirement that a party have an ability to pay.  Alimony can be modified either upward or downward based on changed need and changed ability to pay.  However, it is not enough to show a change in income.  It must be shown how that change affects either ability to pay or ability to meet need.  The statute states:

“An order of a court of this State for alimony or postseparation support, whether contested or entered by consent, may be modified or vacated at any time, upon motion in the cause and a showing of changed circumstances by either party or anyone interested.” N.C. Gen.Stat. §50‑16.9(a) (2007).

In the 2008 case of Frey v. Best, 659 S.E.2d 60 N.C.App.,2008,  the Court of  Appeals stated what was needed in order to modify alimony,

“As a general rule, the changed circumstances necessary for modification of an alimony order must relate to the financial needs of the dependent spouse or the supporting spouse’s ability to pay.” Cunningham, 345 N.C. at 436, 480 S.E.2d at 406 (quoting Rowe v. Rowe, 305 N.C. 177, 187, 287 S.E.2d 840, 846 (1982), disc. review denied, 314 N.C. 331, 333 S.E.2d 489 (1985)). However, “it [i]s error for a court to modify an alimony award based only on a change in the parties’ earnings.” Self, 93 N.C.App. at 326, 377 S.E.2d at 801. “The significant inquiry is how [a] change in income affects a supporting spouse’s ability to pay or a dependent spouse’s need for support.” Id. (internal quotation marks omitted). The trial court is required to “find specific ultimate facts to support [its] judgment [that there has been a material and substantial change in circumstances to support a modification of an alimony order], and the facts found must be sufficient for the appellate court to determine that the judgment is adequately supported by competent evidence.” Montgomery v. Montgomery, 32 N.C.App. 154, 156‑57, 231 S.E.2d 26, 28 (1977).

Bender LeFante Law Offices strongly recommends that you retain the services of an experienced family law attorney to proceed with a motion to modify alimony or post separation support, either for an increase or for a decrease in the existing order.

Step One:  Determine if there has been a change of income and, if so determine if that change materially or substantially affects either need for support or ability to pay.  If the analysis is yes, then a motion to modify must be filed.  A motion to modify support can relate back to the date of filing so it is important not to delay filing a motion.  Many people who are laid off believe that it will not be long before they obtain a new job so they delay filing a court action in hopes that one will not be necessary.  Unfortunately, often times by the time a court action is filed, a large amount of arrears has accrued and the court cannot change the already accrued debt.

Step Two:  Talk with the opposing party to see if it is possible to reach an agreement.  If not, prepare for court.  Here it is important to note that filing a motion for modification of support requires that any local rules for production of documents or other discovery must be followed.  Failure to follow the local rules can result in your matter being denied or thrown out of court.

Step Three:  As was discussed under the section relating to the modification of child support, you MUST provide the court with enough information to make a change in the support order.  It is not enough to ask the court to change its order without being able to prove that your income has changed and that you are either unable to pay the current amount or unable to meet your current need with the support provided.  You will, also, need to show that you have not deliberately depressed your income.  Even with all the proper proof, the court might not change the existing support order, even if your income has decreased or need increased.

This general information is a guideline to the current state of the law in North Carolina. Your personal situation could be different for many reasons.  If you have an existing order or agreement for child support or alimony and have experienced an economic setback, give us a call to set up a consultation to discuss the specifics of your situation.  919.870.9600.