Modifying Child Support in Separation Agreement

Modifying Child Support in Separation Agreement

Children are often a primary concern for those going through a divorce. As a result, some a couples look to enter into a separation agreement. A separation agreement is a contract between two parties that seeks to resolve some divorce related issues outside of court such as child support. However, people’s lives often change from when the separation agreement was first entered into. So, if things change, can the child support be modified from the original separation agreement?

Generally, child support in a separation agreement can be modified. But the modification process depends on whether or not the separation agreement has become a part of a court order. That means the separation agreement was incorporated in some manner into the divorce judgment.

If the separation agreement has become a part of a court order, then North Carolina statutes lay out the necessary requirements to modify the child support within an agreement. North Carolina General Statute § 50-13.7 explains that upon motion and a showing of changed circumstances by either party, the child support may be modified. For example, a change in circumstance may be demonstrated by showing an increase or decrease in either parent’s income and the child’s financial needs have changed.  

If the separation agreement has not become a part of a court order, then the court is without power to modify the agreement except through the mutual consent of the parties involved. Here, the separation agreement is a creature of contracts. Therefore, as long as there is mutual consent, the parties are free to modify the child support within the separation agreement.  However, there is a rebuttable presumption that the amount of child support provided in the Separation Agreement is reasonable.

The lack of power by the court does not permit the parties to modify the child support in any manner they choose. The court will always have the authority to see the best interest of the child and will step in if modification effects that interest.  Consequently, in the event a parent seeks to “modify’ child support, as provided in a Separation Agreement, either party has the ability to file a lawsuit for child support, to seek the Court to make a determination as to whether the child support, as provided in the Separation Agreement, is reasonable.  In the event the amount of child support is not reasonable, then the presumption that the amount of child support in the Separation Agreement is reasonable is rebutted, and the Court is able to award child support, pursuant to the North Carolina Child Support Guidelines.   

If you have questions regarding your child support payments, then contact Jetton & Meredith today to set up a consultation with one of our experienced family law attorneys.

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