CHILD SUPPORT: SHOPPING FOR OPTIONS
When all is said and done, there is a great deal more to child support than meets the eye. Since legal assistance attorneys seldom have experience in the civil courts litigating contested support issues, it is essential to provide good training for them in seeing, analyzing and resolving child support issues. A close examination of the child support issues outlined in this article, coupled with such local CLE training as is available (or affordable) will give legal assistance attorneys a key to solving most child support problems. The checklist which follows gives a visual outline of the most important aspects of child support negotiations and alternatives.
[rev. 6/28/99]
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CHECKLIST FOR CHILD SUPPORT OPTIONS
___MONETARY/CASH AMOUNT
Check state child support guidelines
Check service regulations (for military families)
Allocate among children? [Always when representing the noncustodial parent!]
Escalator clause? With/without a "cap" to limit the amount of support?
net pay escalator gross pay escalator
CPI escalator flat-rate escalator
___HEALTH CARE INSURANCE
TRI-CARE (for military families)
Private insurance
___UNCOVERED HEALTH CARE EXPENSES (UHCE)
Portion paid by noncustodial parent-
all half other fraction
excess over stated amount
Define UHCE or leave unspecified?
Payment due when? To whom?
___LIFE INSURANCE
Amount of coverage
On both parents or just noncustodial one?
Transfer of ownership of policy?
Choice of beneficiary-
other parent child/children trust
___DEPENDENCY EXEMPTION
Allocate or leave out?
Give away or trade for increase in child support?
Permanent or annual transfer?
Complete transfer, or conditioned on faithful compliance with child support obligations?
___COLLEGE EXPENSES
Length of obligation
Items to be covered-
room and board books tuition fees
Conditioned on-
child's performance in school?
generally recognized degree?
accredited institution?
Portion paid by noncustodial parent-
all half other fraction
specific amount
___REDUCTION OF CHILD SUPPORT FOR VISITATION
___TERMINATION OF CHILD SUPPORT
Include death or emancipation (by marriage, military service, etc.) or child's moving away from custodial parent
Other qualifying events-
age of majority high school termination college termination
[1] Family Law Note, "Setting Child Support Obligations," The Army Lawyer, July 1988 at 65.
[2] See, e.g., Fuchs v. Fuchs, 260 N.C. 635, 133 S.E.2d 487 (1963).
[3] Fuchs v. Fuchs, supra; for cases involving the reversal of an award of no child support to a custodial father, see Payne v. Payne, 91 N.C. App. 71, 370 S.E.2d 428 (1988) and McLemore v. McLemore, 89 N.C. App. 451, 366 S.E.2d 495 (1988).
[4] There is a presumption against the proportional reduction of child support when one child attains majority. Gilmore v. Gilmore, 42 N.C. App. 560, 257 S.E.2d 116 (1979). A motion to modify should ordinarily be denied as to separation agreements and consent orders when it involves a child's attainment of majority and the allocation of previously undivided child support. Hershey v. Hershey, 57 N.C. App. 692, 292 S.E.2d 141 (1982).
[5] See, e.g., Berrier v. Berrier, 67 N.C. App. 498, 313 S.E.2d 616 (1984); Tilley v. Tilley, 30 N.C. App. 581, 227 S.E.2d 640 (1976).
[6] See, e.g., Craig v. Craig, 103 N.C. App. 615, 406 S.E.2d 656 (1991); Brower v. Brower, 75 N.C. App. 425, 331 S.E.2d 170 (1988); Gates v. Gates, 69 N.C. App. 421, 317 S.E.2d 402 (1984).
[7] The effect of inflation on child support is well recognized. Courts have even taken judicial recognition of the effect of dollar depreciation on support awards. Walker v. Walker, 63 N.C. 644, 306 S.E.2d 485 (1983); Broughton v. Broughton, 58 N.C. App. 778, 294 S.E.2d 772 (1982). The courts of North Carolina, however, have not been very favorable to escalator clauses in court decrees. An alimony CPI escalator clause was struck down in Barham v. Barham, 487 S.E.2d 774 (N.C.App. 1997), and child support escalator clauses in anything except an unincorporated separation agreement were held to be void as against public policy in Snipes v. Snipes, 454 S.E.2d 864 (N.C.App. 1995).
[8] For an overview of cases in this area, see Brown, "Exercising Care When Drafting COLAs," 7 FAIR$HARE No. 1 at 9 (January 1987); Brown, "Rough Justice in Automatic Support Adjustments, "5 FAIR$HARE No. 5 at 5 (May 1985); and Krause, "Automatic Cost of Living Adjustment Clauses," 1 FAIR$HARE No. 4 at 3 (April 1981).
[9] For practical guidelines and drafting these clauses, see Merrill and Robertson, "The Consumer Price Index and Child Support Proceedings, The LAMPlighter (Am. Bar Assn. Standing Committee on Legal Assistance for Military Personnel), Vol. 2, No. 1 at 5 (Summer 1990); "Sample Clause: Consumer Price Index Clause for Agreements," The Matrimonial Strategist Vol. IV, No. 8 at 5 (Summer, 1986); and Bair, "Arguing Escalator Clauses," The Matrimonial Strategist, Vol. I, No. 2, at 2 (March, 1983).
[10] I.R.S. Code § 152(e)
[11] E.g., Rosen v. Rosen, 413 S.E.2d 6 (N.C.App. 1992).
[12] E.g., Cohen v. Cohen, 100 N.C. App. 334,396 S.E.2d 344 (1990); e.g., Evans v. Craddock, 61 N.C. 438, 300 S.E.2d 908 (1983).
[13] E.g. Goodson v. Goodson, 32 N.C. App. 76, 231 S.E.2d 78
[14] E.g., N.C. Gen. Stat. 50-13.4.
[15] North Carolina, for example, does not require such support. Yates v. Dowless, 93 N.C. App. 787, 379 S.E.2d 79 (1989), aff'd per curiam 325 N.C. 703, 386 S.E.2d 200 (199).