Category: Child Support

Jim successfully defends orders on appeal

Jim Siemens, Court of Appeals

Jim Siemens presenting his argument before the Court of Appeals in October.

The NC Court of Appeals published its opinion this week on a case Jim argued before a special session of the Court in October.  Jim was successful in defending equitable distribution, alimony and child support orders entered in Buncombe County last year.  The Defendant-Appellant raised fourteen issues on appeal.  All but one of which were ruled to be without merit.  The equitable distribution and child support orders were affirmed in full, and the alimony order was remanded in part for additional findings on the parties’ expenses.

Judge Valerie Zachary wrote the opinion for this case, and Judge Calabria and Chief Judge McGee concurred.  The Court of Appeals upheld the trial court’s adoption of most of the Plaintiff’s proposed findings and conclusions, as well as acceptance of the Plaintiff’s witness as an expert in accounting, and the application of the terms of the parties’ premarital agreement.  The trial court’s classification, valuation and distribution of assets in its equitable distribution order were also upheld.

The Court of Appeals specifically upheld the trial court’s use of a coverture fraction to value the marital portion of a TSP and subsequently funded IRA and annuity in the equitable distribution order.  The use of the coverture fraction in the context of N.C. Gen. Stat § 50-20.1 and Watkins v. Watkins* was supported by Jim in his brief, and seemed to be of particular interest to the panel during his oral argument before the Court.

The opinion stated in summary, “the trial court’s alimony order must be reversed and remanded for entry of additional findings concerning the parties’ expenses.  We conclude that the trial court did not otherwise err and that in all other respects, its equitable distribution, child support and alimony orders should be affirmed.”

The full published opinion on Kabasan v. Kabasan (COA 17-254) is embedded below, and can be found on the N.C. Appellate Courts website.

*Watkins v. Watkins, 228 N.C. App. 548, 746 S.E.2d 394 (2013).

Jim Siemens Argues Before Court of Appeals in Sparta, NC

Court of Appeals

Jim Siemens presenting his argument before Judge Zachary, Chief Judge McGee and Judge Calabria.

Jim Siemens traveled last week to the mountain town of Sparta, North Carolina to present an oral argument before the Court of Appeals. The argument was part of a special session celebrating the 50th anniversary of the NC Court of Appeals, holding a session of court in a hometown or county with a special connection for each judge. Jim’s case followed a criminal case from Watauga County, and the session drew a small crowd from the Sparta community.

Jim appeared before Chief Judge Linda McGee, Judge Valerie Zachary and Judge Ann Marie Calabria in the Alleghany County Courthouse. He argued in support of three orders on the issues of equitable distribution, alimony and child support. All three orders were drafted by Jim and entered last year by the district court judge presiding in Buncombe County, and are now challenged on appeal by the Defendant.

Jim defended his positions on valuing marital assets including retirement accounts and real property; the use of date of distribution exchange rates to value Brazilian real property; the application of the terms of the parties’ premarital agreement for an equal division of the marital estate; and determining the Plaintiff’s status as a dependent spouse for establishing terms of alimony.

The Court was particularly interested in the issue of valuing the marital portion of a Thrift Savings Plan and subsequently funded IRA and annuity in the equitable distribution trial. Jim gave further support for his argument pertaining to valuing deferred compensation using a coverture fraction in the context of N.C. Gen. Stat. § 50-20.1 and Watkins v. Watkins.*

After Jim’s strong argument before the panel, he now waits for a decision from the Court. More information about the judges on the panel and the Court of Appeals of North Carolina can be found on More information about the special session can be found on the Twitter page for the NC Judicial Branch.

*Watkins v. Watkins, 228 N.C. App. 548, 746 S.E.2d 394 (2013).

Jim Siemens, Court of Appeals

Jim arguing before the N.C. Court of Appeals. Photo by Chris Mears/NC Judicial Branch.

Alleghany County Courthouse

Alleghany County Courthouse in Sparta, N.C. Photo by Chris Mears/NC Judicial Branch.







Jim Siemens, Court of Appeals

Jim answering questions from the panel.    Photo by Chris Mears/NC Judicial Branch.

Court of Appeals

Judge Calabria, Judge McGee and Judge Zachary. Photo by Chris Mears/NC Judicial Branch.



What You Should Know About Child Support in North Carolina

child supportLike most states, North Carolina uses child support guidelines to help simplify the process of determining child support. North Carolina’s guidelines are based on an income shares model, which is predicated on the concept that the child should receive the same proportion of parental income that he/she would receive if the parents lived together. The North Carolina Child Support Guidelines currently in effect provide a formula for determining the presumptive child support obligation for parents whose combined gross income is $300,000 per year ($25,000 per month) or less. The child support guidelines are reviewed and updated at least once every four years to ensure they result in reasonable child support awards.

The guidelines are designed to work in conjunction with three different worksheets that accompany the guidelines. One of these three worksheets must be used when calculating support under the guidelines. The appropriate worksheet will depend on the parties’ child custody arrangement.

Worksheet A should be used when a parent has sole or primary physical custody (meaning one parent has the child/children for 243 or more nights of the year); Worksheet B should be used when the parents share child custody (each parent has the child/children for at least 123 nights per year); and Worksheet C should be used when there are two or more children and the parents split primary custody of the children. The worksheets allow other variables to be factored into the calculation of child support, including child care costs paid by a parent due to employment or job-search, health insurance paid by a parent for the child, and either parent’s responsibility for the support of any other children.

Most child support matters fall within the scope of the child support guidelines. However, there are exceptions. When the parties’ combined income exceeds $300,000 per year, the child support guidelines do not apply, and child support must be determined on an individual case basis. In these cases, unless the parties reach an agreement, the court must conduct a hearing and set child support in such amount to meet the reasonable needs of the child for health, education and maintenance, with due regard given to the estates, earnings and conditions of the parties, the accustomed standard of living of the child and the parties, and the other facts and circumstances of the particular case.

Even when the parties’ combined gross income falls within the guidelines, special circumstances may exist that provide a basis for a party to seek, or a court to determine, that there should be a deviation from the child support guidelines. Some such circumstances include: when a child has special needs and the amount of support calculated using the guidelines would not meet the needs of the child; when a parent is paying 100% of the child support obligation and 100% of the child’s health insurance premium; or, when a parent is paying child support for two or more families pursuant to the terms of two or more separation agreements, voluntary support agreements, or court orders.

Court hearings to determine child support can be lengthy proceedings that may require extensive evidence to be presented regarding incomes, income earning ability, expenses, standard of living, and other relevant factors. However, child support does not have to be set by the court. Regardless of incomes or other factors, the parties have the option of reaching an agreement on child support and settling the matter outside of court. Whether your matter is settled amicably or requires a contested court hearing, it is recommended that you retain an experienced and qualified family law attorney to represent you throughout your child support matter. Being represented by counsel can ensure that your legal and financial interests are protected during negotiations and beyond, and that child support is set in an amount that is fair to both parties and the child.

The family law attorneys at Siemens Family Law Group provide representation in a wide array of divorce and family related legal matters, including child support. If you need assistance in making an initial determination of child support, or would like to seek an increase or decrease in an existing child support obligation, our experienced and dedicated attorneys can help. We are committed to providing compassionate guidance and effective advocacy that has earned us a reputation as one of Asheville’s premier family law firms.

This article is intended for information purposes only and is not to be considered or substituted as legal advice. This article is based on North Carolina laws in effect at the time of posting.

Redefining Child Support

Siemens Family Law Group - Child SupportChild support can play an important role in helping families with children move on after a separation, but it can also contribute to a host of related problems for some parents. A less traditional view of child support can mean different types of support for different families. Read about how one single mother redefined what child support is for her family and forgave $38,750 in arrears from her ex-husband. “We focus on money, when ‘child support’ also means emotional support, academic support and the supportive power of a male influence in a child’s life,” she says.

Read her story on The New York Times Motherlode blog here: Forgiving $38,750 in Child Support, for My Kids’ Sake

Updates to the 2011 N.C. Child Support Guidelines

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.

Q & A for Paralegals and the Public

From a paralegal continuing legal education seminar presentation by Jim Siemens September 24, 2010:

What is abandonment?  Termination of the marital relationship without justification, without the consent of the other spouse, and without the intent of renewing the marriage.

How is separation defined in North Carolina?  Must be more than discontinuance of sexual relationship and implies living apart such that the community can see that the parties are no longer living together.  One party must have the intent to remain separate and apart.  Even after physical separation, if intent can’t be discerned, the parties may not be separated.

What constitutes reconciliation?  Resumption of the marital relationship.  Isolated incidents of sex post separation are not enough to constitute reconciliation.

What rights do parents have to custody in North Carolina?  Parents have the paramount constitutional right to custody in North Carolina.  There is a grandparent visitation statute but the relief grandparents have is limited and in an intact family, grandparents have no right to seek visitation.  Parents can abrogate their constitutional rights by acting inconsistently with those rights.

What rights do third parties have to custody in North Carolina?  Third parties can seek custody when parents are not available or when the parents have abrogated their constitutional rights by being unfit, or acting inconsistently with their rights as parents.

What discretion does the District Court have over custody decisions in North Carolina?  The Court is guided by the best interest standard which is the polar star of the custody inquiry.  However, before third parties can argue best interest, they must overcome the paramount constitutional rights of parents.

Would marital misconduct be relevant in an equitable distribution trial?  Marital misconduct is not relevant to equitable distribution in North Carolina.  However, the use of marital funds during and after the marriage may be relevant.

Would marital misconduct be relevant in a hearing on post separation support?  Only if the supporting spouse wishes to raise marital misconduct as a defense to paying support.  The supporting spouse controls the inquiry into fault in a post separation support hearing.

Would marital misconduct be relevant in a hearing on alimony?  Yes, and abandonment is a form of marital misconduct.

How are these forms of support determined in North Carolina?  Amount and duration of alimony in North Carolina are discretionary, though the Court is guided by factors listed at NCGS 50-16.3A.  Spousal support is to be determined with consideration of the income and earnings of the supporting spouse, and need of the dependent spouse.

How is child support determined in North Carolina?  Child support guidelines are typically used to determine child support, based upon an income shares model.  Guidelines are expected to change in October of 2011.  There is a growing body of case law suggesting that parties can contract to provide for the reasonable needs of their children.