Can I Change My Child Support Agreement?

Modification in General

If a separation agreement has not become part of a court order, then (like other contracts) it can be modified only with the consent of the parties.  The parties can consent “in advance” by including in the agreement a provision that it may be modified under specified circumstances.  If the parties don’t agree that those specified circumstances exist, then the party seeking the change can apply to the court for an order stating that, under the contract, new circumstances merit the change in the agreement.

It does not violate North Carolina public policy to state in a separation agreement that such an agreement may not be modified, except with regard to children and their support.  (The court always has jurisdiction to see to the best interests of the children.)

If a separation agreement has become part of a court decree, then it is no longer “merely” a contract and different rules apply with respect to modification.  North Carolina statutes provide for modification only upon a showing of a substantial change of circumstances.  State law will not enforce a clause stating that the agreement is not modifiable in an agreement that has become part of a court decree.

In general, if a separation agreement is part of a decree, the court will apply statute law to “trump” the terms of the agreement.  For example, the parties may agree that alimony will continue to be paid after the party receiving it remarried, but the statute prohibits this.  However, even though the law generally does not require that a parent support a child once the child reaches legal adulthood (age 18), the courts will enforce an agreement that is part of a court order in which a parent agrees to support  the child until a later date (for example, until the child’s college graduation).

Modifying Child Support

Parents may provide for the support of their children in their separation agreements, whether or not such agreements become part of court orders.

However, while parents have freedom to enter into contracts in general, provisions in agreements that concern children cannot prevent the state from acting in the best interests of the children and providing for their welfare.

But the law also recognizes that parents are often the best judges of what their children need.  Thus, parental agreements regarding child support will be given weight by the courts.

For reasons of public policy, courts will refuse to honor terms of separation agreements in which a parent is relieved from supporting a child, or in which a parent agrees not to seek child support in the future.  A parent’s agreement not to seek visitation with a child will not justify enforcement of such a clause.

Courts will also not enforce an agreement by which a parent waives any claim for future child support in exchange for a lump-sum payment, as courts recognize that a child’s needs (and a parent’s ability to meet them) may change in the future.

A court will generally enforce agreements that specify the amount of child support, if the judge concludes that the amount is in keeping with the best interest of the child.  Courts will commonly enforce such agreements even if the parties agree to more child support than called for in the statutory guidelines, and more than the court would have ordered on its own.

Motions to Modify Child Support Based on Agreements

After the parents have entered into a separation agreements, one of the parents may decide that the amount of child support specified is not the proper amount.  The parent may then bring a motion to modify the amount of support.

A court will presume that the amount the parties originally agreed to was proper, just, and reasonable.  Thus, if an agreement has not become part of a court decree, the moving party will have the burden of overcoming this presumption.  The moving party will also need to show what amount of child support is required.  Since the court was not involved in setting the original amount, a party only need show what amount is required to meet the reasonable needs of the child.  The moving parent is not required to show a change of circumstances.

In ruling on a motion to modify child support based on a separation agreement, the court must compare the needs of the child at the time of the hearing to the amount to which the parents originally agreed.  If the moving parent fails to rebut the presumption that the original amount was reasonable, then the court will order payment of the original amount.  If the moving parent does meet the burden of showing that the agreed amount was unreasonable, then the judge will refer to the statutory guidelines for child support, deviating from the guidelines in an appropriate case.

Deviation from the state child support guidelines involves four steps:

1. The court must determine the presumptive amount of support under the guidelines.  This is based on factors including:
   1. The parents’ incomes
   2. The number of children from the relationship
   3. The number of overnights a child is with each parent
   4. Support obligations for other children
   5. Child care costs
   6. Health care costs
   7. Other extraordinary expenses
2. The court must hear evidence on the need of the child and the parents’ ability to pay support.
3. The court must determine whether the guideline amount would either not meet or would exceed the child’s needs, or would be otherwise unjust.
4. The court must make findings of fact that would allow review of the court’s decision by a court of appeal, if a parent challenges the court’s decision.

To order deviation from the guidelines, the court must make findings regarding the needs of the child and the estates, earnings, conditions, and living standards of the parties.

• “Estates” includes savings, real estate holdings, stocks and bonds, and other valuable property.
• “Earnings” includes wages, salaries, benefits (such as free or reduced-cost housing), and investment income.  Even income from illegal activities such as gambling may be taken into consideration.  Income may be imputed to a parent who deliberately depresses his or her income by remaining unemployed or taking a low-paying job.
• “Living Standards” takes into account a parent’s duty to give children “those advantages which are reasonable” considering the parent’s financial condition and position in society.  I.e., the child should be provided enough support to be able to live in the same fashion as if the family was intact.

A court can also consider any “special circumstances,” such as the conduct of the parties and fairness.  For example, where the amount of child support ordered would allow the children to maintain a “high lifestyle” but reduce the father to poverty, the payments were deemed unfair.

If a moving parent is successful in showing that the original agreed amount of support was unreasonable, ordinarily the new amount will only apply to future child support.  To justify a retroactive change in child support, the parent will have to prove that an emergency situation justifies it.  Such an emergency may involve either the parent or the child.

If the parent who owes child support seeks modification, and the court orders payment of a lower amount of child support than the parties originally agreed, the other parent can still sue the paying parent to enforce the terms of the original contract.  However, if the parent who is owed child support seeks modification, and the court orders an amount less than the amount previously agreed to, that parent cannot still sue to enforce the payment of the amount in the agreement.

The following 2009 case illustrates how courts deal with child support terms incorporated into agreements that are not part of court orders.

Case Study: Brind’Amour

Rob and Kelle Brind’Amour were married in 1996 and separated in 2003.  They had three children.

Rob was a professional hockey player.  Because he faced a possible lock-out by NHL owners, the parties agreed that Rob would pay $15,000 per month in child support, or $2,500 per month from the time of a lock-out until the regular hockey season resumed.

This agreement was not incorporated into a court order.

Rob and Kelle both later filed motions to establish child support.  Kelle claimed that Rob had failed to pay for certain extracurricular activities for the children as required by their agreement.

In 2007, a trial court ordered Rob to pay Kelle $9,147 per month in child support.  The court also ordered him to pay for all the children’s health care expenses, extracurricular activities, and educational expenses not covered by the agreement.

The trial court made over 100 findings of fact, including the following:

• The presumption that the amount of child support in the original agreement was just and reasonable was rebutted by the temporary nature of the agreement (in light of the expected lock-out) and the parties’ conduct before and after they signed the agreement.
• The Brind’Amour children enjoyed unusual advantages, including large homes, travel, and extracurricular activities including fine arts classes, participation in sports, and attendance at plays, musicals, museums, and magic shows.
• The custody order provided that day-to-day decisions would be made by the parent the children were with at the time.
• Rob and Kelle had different views on the lifestyle they wanted for their children.  Rob wanted to instill the values of hard work and frugality in the children.  His living expenses for himself and the children were much lower when they were in his care than when they were with their mother.
• Requiring Rob to pay more child support would result in a windfall to Kelle and would benefit her more than it would serve any reasonable needs of the children.
• The children spent 40% of their time with Rob and 60% of their time with Kelle.
• Kelle spent $1,300 per month on a nanny and also provided the nanny with a car.
• When the children were with Rob, Kelle didn’t need a nanny and the nanny expenses for that time were not reasonable.
• Kelle spent about $1,130.37 per month for the children’s entertainment and recreation.  However, she failed to provide evidence to show what portion of these expenditures was for children’s parties rather than parties she threw for her friends.
• Spending $1,130.37 per month for children’s entertainment is excessive and unreasonable.  A more reasonable amount is $355 per month, which allows for $500 for each child’s birthday party, $300 for each child’s end-of-school pool party, and $60 per week while the children are with Kelle.
• It was reasonable and in the best interests of the children for Rob to pay $9,147 per month in child support.

Kelle appealed, arguing that the trial court had made various errors and that its order was not supported by adequate findings.

The court of appeal upheld the trial court’s decisions, finding that the trial court had not abused its discretion and that it had painstakingly reviewed the evidence.

Kelle argued that the trial court had deprived the children of advantages and luxuries they otherwise would have received.

The court of appeals noted that the children would continue to attend private school and have other advantages, but that a portion of the expenses Kelle claimed were either unrelated to the children’s needs or were exorbitant.

The court of appeal also agreed with the trial court that the cost of the nanny, and the nanny’s car, was unnecessary because Kelle did not work outside the home.

Motions to Modify Child Support Based on Court Decrees

If a child-support agreement becomes part of a court decree, a court also has the power to act in the best interests of the child.  A parent can still file a motion seeking a modification of the amount of child support.  However, where child support has been determined by court decree, and not merely by an agreement between the parties, the moving parent faces a higher burden and the court faces a different issue.

The moving parent must prove a substantial change of circumstances since the date of the previous court order.

Changes of circumstances relate to the guidelines, estates, living conditions, etc. as discussed above.

An involuntary decrease in a parent’s income may satisfy the showing of a changed circumstance to support a decrease in child support obligations, even without any evidence of a change in the child’s needs.

An increase in a parent’s expenses will not necessarily be considered a change in circumstances.  For example, in the 2005 Saunders case, the court found that the presence of a new-born child in the father’s home was not a “change of circumstances” that justified a reduction of his support obligation to a previous child.

Also, an increase in a parent’s income will not, in itself, justify an increase in child support obligations, as the following 1999 case illustrates.

Case Study: Thomas

Sarah Thomas and Lewis Thomas were married in 1974 and had three children.  They were separated in 1986 and Lewis was ordered to pay Sarah $1,300 per month in child support — $500 each for the two older children, and $300 for the younger child.

Lewis complied with this order until 1996, when his oldest child turned 18 and graduated from high school.  He unilaterally reduced his payments to $800 per month.  Sarah filed a motion to modify the child support order to increase the amount of support.

The trial court judge increased Lewis’s child support obligation to $1,766 per month, finding that there had been a substantial change in circumstances.  Specifically:

• Lewis’s income had increased from $150,000.00 to $273,351.00, and his net worth had reached $3.5 million.
• One of the children had reached the age of 18 and graduated.
• Lewis’s support obligations had not been computed using the most recent child support statutory guidelines.
• The needs of the children had increased since 1986.

Lewis appealed, and the court of appeals vacated the trial court’s decision, finding that:

• A child reaching 18 and graduating does not justify an increase in child support.  (In fact, court-ordered support terminates at 18.)
• A finding that Lewis’s child support obligation was not computed using the most recent child support statutory guidelines was insufficient to show a substantial change in circumstances.
• A finding that the needs of the minor children had increased since the entry of original child support order was insufficient to show a substantial change in circumstances because there was no evidence in the record relating to the reasonable needs of the children.
• “It is well established that an increase in child support is improper if based solely upon the ground that the support payor’s income has increased.”

Support of Adult Children

As previously noted, parents can agree that one will support children even after they turn 18 and/or graduate from high school, even though a court has no authority to order this on its own (except for limited circumstance where a child is still in primary or secondary school at the age of 20).

Courts will enforce such agreements between parents, as a matter of contract law.

However, a court may neither enlarge nor reduce the amount of post-majority support that the parents have agreed to, unless the agreement gives the court the power to do so (or unless the agreement is part of a court decree).

If an agreement for post-majority support is part of a court decree, then the court can modify it if there is a “substantial change of circumstances,” as discussed above.