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What Happens to Child Support When a Special Needs Child Reaches 18?

What Happens to Child Support When a Special Needs Child Reaches 18?

What Happens to Child Support When a Special Needs Child Reaches 18? By Amy A. Edwards Before 1979, North Carolina parents had a legal obligation to support their child if he or she was mentally or physically incapable of self-support upon reaching age 18, the age of majority. There was considerable debate about whether to keep parents’ responsibility in place or end support at age 18. Now, although there aren’t any specific child support laws for children who have special needs, support can be extended to a maximum age of 20 in certain circumstances. Support can’t be ordered past age 20 unless the parent signs a contract saying so. Child Support Law In North Carolina, unless there’s a contract that says otherwise, child support continues after age 18 if “the child is still in primary or secondary school when the child reaches age 18.” In that event, support continues until “the child graduates. . . ceases to attend school on a regular basis, fails to make satisfactory academic progress towards graduation, or reaches age 20, whichever comes first.” NC Gen. Stat. §50-13.4. Non-Traditional Progress In 2001, forty years after repealing the statute that required parents to support their child if he or she was incapable of self-support, our Court of Appeals made a small step towards helping special needs children when it clarified that special needs children aren’t penalized just because they are not in a traditional high school. John Hendricks had Down Syndrome and attended a special program in a high school that taught “vocabulary and activities of daily living such as how to count money.” When he reached the age of 18, his mom asked the court to end her child support obligation because he wasn’t making satisfactory academic progress towards graduation. He wouldn’t receive a traditional high school diploma. But John’s teacher and school counselor testified that “John’s attendance at school is in his best interests, [and] that he would continue to benefit in the future from the curriculum.” The Court of Appeals held that John was making satisfactory academic progress toward a non-traditional graduation, and it was equivalent to a traditional graduation. Child support would remain in place up to age 20 so long as John made progress in his program. The Court wrote: If John were not mentally disabled but instead was enrolled in a traditional high school curriculum, it is clear support would...

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Overwhelmed: Where Do I Begin?

Overwhelmed: Where Do I Begin?

Overwhelmed: Where Do I Begin? By Amy A. Edwards First: The Consultation A consultation is not the same thing as hiring an attorney. It is simply a meeting with an attorney, who should then give you legal advice and tell you what the cost is to hire that attorney. After the consult, it is the client’s decision whether to hire the attorney. The client might choose to do nothing at all after a consult. In fact, a number of people having problems with their relationship have consults because they want to know what their options are if the relationship deteriorates in the future.  The meeting is a chance for you to bring a list of questions you have so that you can get the answers you need to make serious decisions in your life. It can be helpful to do some research to get a general information about the process, but the attorney gives you legal advice based on your specific situation. After a consult, it is common for clients to say that they feel so much better knowing what the real issues are, and what the possible solutions are. They’re sometimes surprised to discover that threats or information from the other parent or spouse is not accurate or even feasible, which can be a big relief. Second: After the Consult Once you have a few answers, you can then decide whether you are ready to move forward with the separation, custody case or other important legal matter. However, if you have been served with a lawsuit or motion, that first decision is made for you. To begin working on your case, our office requires an advance of funds to be placed in your account. Sometimes, people refer to this as a retainer. If money remains in your account at the end of your case, our office returns it to you. More often, things take longer than anticipated. This is partly because it is difficult to tell how much the other party will truly dispute. If the dispute ends up in litigation, we cannot control the court system and whether there are trial dates, civil discovery, and other litigation events. The attorney your ex hires can also make a big difference, including whether he or she is willing to make any good faith efforts to settle the case before there is a trial.  Third: Relief of Sharing the Burden The next phase after your...

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The Deployed Parents Act: Protecting Parents (Part 1 of 2)

The Deployed Parents Act: Protecting Parents (Part 1 of 2)

The Deployed Parents Act: Protecting Parents (Part 1 of 2) By Amy A. Edwards In North Carolina, we’re fortunate to have the Uniform Deployed Parents Custody and Visitation Act, which helps military parents balance their military duties while they are deployed and their desire to maintain their bond with their children. Not only that, but the Act allows the child to preserve the relationship with deployed parent’s side of the family, or even an unrelated non-parent that the deploying parent nominates. Parents who reach an agreement about what will happen between the child and the non-parent during deployment can have the agreement treated as a court order if they take certain legal steps. But the Act also protects the military parent when there is no agreement. It also requires the court to offer an expedited trial to take place before a parent deploys. What the Act Does: Parental Rights Before the Act, if a parent temporarily surrendered custody as the military often required, his or her parental rights were seriously compromised from the viewpoint of the North Carolina courts. Surrendering custody before the Act put a parent at risk for losing permanent custody to the non-parent. Giving someone else custody of your child could be seen as acting inconsistently with your constitutional rights as a parent. Our state law simply didn’t have any solution to the problem. Now, the Act allows judges to enter temporary custody orders for the sole purpose of protecting military parents while they perform their military duties. The deploying parent can nominate a third party who is a non-parent, such as a grandparent or even a close family friend, to have limited rights in his or her place while that parent is gone. What the Act Does: Special Problems Military deployment isn’t convenient for anyone, including judges who may not deal with military parents very often. Judges make custody orders detailed and specific with exact dates, exact times, transportation arrangements and other things that are likely to be disputed. The more details a custody order has, the harder it is for a parent to “interpret” it when there is a question. For judges, it can be complicated to figure out how the parent and child can remain close while he or she may not even be on the same continent, in a situation where no one necessarily knows the important details surrounding the deployment. The...

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Does North Carolina Recognize Quickie Divorces?

Does North Carolina Recognize Quickie Divorces?

Does North Carolina Recognize Quickie Divorces? By Amy A. Edwards In North Carolina, parties seeking a divorce must show that at least one of the spouses has resided in the state for at least six months when either spouse files for the divorce. As of the date that a spouse files a claim for divorce, the parties must be separated for at least twelve months. When they separated, at least one of the spouses had to intend for the separation to be permanent. Why Do People Want Quickie Divorces? Besides the obvious desire to be legally single and/or remarry, there are several other reasons people get quickie divorces. There are those who want to get a divorce without the one-year separation, or those who haven’t lived in North Carolina for at least six months at the time the divorce is filed. Another incentive for quickie divorces is the payment of alimony. The deadline for filing an alimony claim in North Carolina is the entry of the divorce decree. If there isn’t an alimony claim already pending when the divorce decree is granted, it permanently expires and can’t be filed again. In other words, someone might try to slide the divorce past the other spouse with the hope that he or she won’t have time to file for alimony. The U.S. Constitution Our Constitution protects citizens with the right to due process of law. The courts only have the right to make rulings (i.e., legal authority) if they have jurisdiction. Without it, the court can’t issue valid court orders or decrees. A party to a lawsuit is entitled to legal notice and an opportunity to be heard and defend himself or herself. This usually occurs by service of the summons and complaint, when a sheriff hands a copy of the paperwork to the defendant, or the defendant signs to accept certified mail. Divorces by Other States When one U.S. state enters a decree, another state must generally accept it as valid. The Constitution requires one state to recognize it, giving it what is called full faith and credit. There are exceptions. North Carolina or any state can reject a decree of another state if that decree was fraudulent or the court did not have jurisdiction (i.e., the defendant wasn’t served with a copy of the paperwork). In other words, if it wasn’t valid in the state that issued it, then...

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Is it Time to Change Your Child Support?

Is it Time to Change Your Child Support?

Is it Time to Change Your Child Support? By Amy A. Edwards Unless you have a child support agreement or order for older teenagers, you will probably ask the question of whether and when child support (CS) can be changed. Any time parents can reach an agreement instead of have a trial, CS can be changed so long as the legal documents are properly prepared. But more importantly, if there is no agreement to change CS, what are the grounds a parent can use to ask that the amount be changed? This article looks at that question in the broadest terms and doesn’t get into the many exceptions to the rules or other unique situations. CS is only permanent until a parent files court documents to change or modify it. Until a child is eighteen or graduates from high school, the court has the authority to change the amount, increasing it or decreasing it, as may be necessary over the years. Court Orders: 3 Years or Changed Circumstances? The courts almost always calculate CS by using a formula set out by the NC Child Support Guidelines, which generally use only the gross income of each parents, work-related child-care cost, the number of children each parent has, and the out-of-pocket cost for each child’s health insurance. If you have a court order or a separation agreement that was converted into a court order, either parent may file a motion to modify CS if three years have passed since the last CS order was entered. The law assumes that after three years, it is time to review CS, which will be changed if there is at least 15% difference between the old amount of CS and the new amount of CS based on the current Guidelines. If three years haven’t passed since the CS order was entered, then a parent must show there has been a significant change in circumstances since the date that the last CS order was entered. What Counts as Changed Circumstances? The general rule is that a change in circumstances related to the child (or children) is enough to change child support. If a parent changes jobs and the child’s health insurance cost increases by $300 per month, for example, the change in circumstances merits a change in child support. Another fairly straight-forward change in circumstances is when a parent has a significant and involuntary drop in...

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When Will the Judge Make a Ruling in my Case?

When Will the Judge Make a Ruling in my Case?

When Will the Judge Make a Ruling in my Case? By Amy A. Edwards This question comes up all the time. The short answer is that the judge makes a decision in your case whenever he or she makes a decision in your case. Attorneys don’t have the authority to push judges to make decisions in cases. The judges are in control of what happens in court, which includes the time it takes to do things. After a trial, the judge makes a decision on what is disputed in your case, which is called a ruling. The judge signs a written order and the clerk of court “enters” it with an ink stamp that reflects the date. On that date, it becomes legally effective or entered. In the Beginning During your trial, also known as a hearing, the judge probably took notes and/or admitted trial exhibits into evidence. Typical evidence in a child support case for a self-employed person includes three years of personal and corporate tax returns, bank records, credit card statements, invoices and other documents that prove what the monthly business and personal expenses. Then, consider the stack of evidence the judge has from all of the trials that particular week or two, and you can begin to understand why the judge’s ruling may take so long. After the trial is over, the judge will also need to review his or her notes and sometimes obtain a recording of the trial if it was complex or if enough time has passed that it is no longer fresh in the judge’s mind.  Behind the Scenes The judge’s day job is to sit in court listing to trials, which leaves only limited unscheduled time to work on a ruling in your case. Judges have a few random days of office time that is scheduled, but not many. Often, the free time a judge might have to work on your case is when some other case that was scheduled for a trial settles or gets continued to a later date. If a two-day trial was scheduled and the parties sign an agreement three hours into it, the rest of the two days might be available to work on your case. Or, the rest of that time might be used to hear a trial that had been scheduled on the waiting list as a “backup” case so no court time is wasted. There is a severe shortage of judges, and the...

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