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North Carolina General Statute § 50-13.10 provides that vested, past due child support is not modifiable unless “a written motion is filed, and due notice is given to all parties either: (1) before the payment is due; or (2) if the moving party is precluded by physical disability, mental incapacity, indigency, misrepresentation of another party, or other compelling reason from filing a motion before the payment is due, then promptly after the moving party is no longer so precluded. Again, the general rule in North Carolina is that vested, past due child support is not modifiable. However, if your situation fits into one of these limited exceptions, you may be able to ask the court to retroactively modify your vested past due child support amount.
The first scenario arises when a party has filed a motion for modification of child support, but the motion has not yet been heard by a judge. If this is the case, past due child support can be modified back to the date that the motion was filed. However, if the paying party has been paying less child support than the amount that is determined appropriate, that party will still owe arrearages to make up the difference between what he or she has been paying and what he or she should have been paying.
The second scenario occurs when circumstance beyond ones control prevent a party from filing a motion for modification of child support. The statute specifically mentions “physical disability, mental incapacity, indigency, and misrepresentation of another party” as reasons which would allow modification of vested past due child support; but it also provides somewhat of a “catch-all” by allowing for any “other compelling reason,” to provide the basis for such modification. Be cautious, however, proceeding under this section of the law, as not all circumstances that fit into these specified scenarios will suffice for a retroactive modification. The facts of your case must be such that your circumstances actually prevented you from taking action prior to the child support payment coming due. This exception ends once the party is no longer precluded from taking such action.
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Given the difficulty of removing vested child support arrears, it is very important to file a motion to modify child support immediately upon a substantial change in circumstances that impacts the amount of child support that should be paid. New amounts of child support determined by a court typically relate back to the actual date of filing the motion to modify child support.
What constitutes a "substantial change" is arguable, but the North Carolina Child Support Guidelines dictate that changes resulting in a 15% difference in the amount of child support payable, coupled with the passage of 3 years since the last child support order was entered, shall be presumed to constitute a substantial change of circumstances which may warrant modification of the existing child support order. That said, shorter amounts of time and other percentage changes to child support may also warrant a modification depending on all of the surrounding circumstances.
Have questions about child support arrears, modification of child support, or child support generally in North Carolina? Call 704-412-1442 today to speak to a Charlotte, NC based Child Support Lawyer.
The Payee/Obligee (the person receiving child support) may forgive the arrears of the payor/obligor (the person paying child support) through a court order or negotiated consent order. However, the payee is under no requirement to forgive vested arrears, and the payee may NOT forgive vested child support arrears if the payee is receiving public benefits.
Prism Family Law Firm, updated 06/01/2019
The short answer to this question is, in most cases, NO. Our Charlotte, NC based child support lawyer has experience speaking with people who have accrued thousands of dollars in child support arrearages (past due child support) over a period of years, and now want those arrearages to go away. However, in North Carolina, once child support has become due, or once it is “vested,” the amount cannot be modified, even if the child is over the age of 18, except in a few limited situations. This means, that in almost all circumstances, you must pay your arrearages, and you must pay the full amount you owe. Read below for a few exceptions to this general rule.