Child support actions are in personam actions. What this means is that in order for a North Carolina court to have the authority to order a child’s parent to pay support, it must have personal jurisdiction over him or her. When both parents live in North Carolina, personal jurisdiction is not an issue; however, what happens when the parent from whom child support is sought lives in another state? UIFSA, the Uniform Interstate Family Support Act, governs the establishment, modification, and enforcement of all child support orders, as well as the modification and enforcement of some alimony orders in North Carolina. N.C. Gen. Stat. Chapter 52C (2008).

Under UIFSA, a North Carolina Court has the authority to assert personal jurisdiction over the defendant in a civil action to establish child support if he is domiciled in North Carolina. The defendant may claim that he is not a resident of North Carolina and thus the North Carolina courts should not have jurisdiction over him to establish child support; however, if the court finds that he is domiciled in North Carolina, then it can exercise personal jurisdiction. Domicile has been defined as “the place where [the party] intends to remain permanently, or for an indefinite length of time.” Atassi v. Atassi, 117 N.C. App. 506, 451 S.E.2d 371 (1995).

North Carolina can assert personal jurisdiction over a defendant in a child support action regardless of whether he lives in North Carolina if the person is served with process within the state of North Carolina. In addition, if the person makes a general appearance in the case, meaning he submits relevant information to the court with respect to the merits of the case or files a response to the child support complaint that does not contest personal jurisdiction, then the North Carolina court can exercise jurisdiction over the nonresident defendant.

The defendant’s activities in North Carolina prior to his being served with the child support complaint can also be used to determine whether he is subject to personal jurisdiction in North Carolina. If the defendant is engaged in substantial activity within the state such as buying and selling real estate, obtaining a driver’s license, conducting business, or other substantial activities, then he is subject to North Carolina jurisdiction with respect to child support. North Carolina will also have jurisdiction over a nonresident defendant in a child support action if the child support claim arises out of a marital relationship that existed in North Carolina regardless of the fact that the defendant subsequently moved. In addition, if the defendant resided in North Carolina with the child or if he resided in North Carolina and paid prenatal expenses or support for the child, or if the child may have been conceived as a result of sexual intercourse by the defendant within North Carolina, then a North Carolina court has jurisdiction to establish child support. Finally, if the child lives in North Carolina as a result of the directives of the defendant or if the defendant asserted paternity in affidavit filed with the clerk of court, North Carolina will jurisdiction to establish child support in an action involving a defendant who may be a resident of another state.

Contributor: Jaime H. Davis - Jaime Davis. a Raleigh Family Law Attorney is a North Carolina Board Certified Family Law Specialist with the Raleigh, North Carolina Divorce Law Firm of Gailor, Wallis & Hunt, PLLC. For more information contact: Raleigh, North Carolina Family Law Firm, Gailor, Wallis & Hunt at 1101 Haynes Street, Suite 201, Raleigh, NC 27604. Tel: 919-832-8488, www.gailorwallishunt.com.

For more information contact: Raleigh, North Carolina Family Law Firm, Gailor, Wallis & Hunt at 1101 Haynes Street, Suite 201, Raleigh, NC 27604. Tel: 919-832-8488, www.gailorwallishunt.com.

Disclaimer: The information contained in this article is intended as a general guide and is not to be used as legal advice by Gailor, Wallis & Hunt, PLLC. Whether or not you may be entitled to take action in regard to the information addressed in this article can only be determined after a thorough review of the facts and circumstances of your case. You may contact North Carolina Family Lawyers, Gailor, Wallis & Hunt, PLLC, a full service divorce law firm, at 919-832-8488 or 910-509-7223

Under existing tax law, a parent is entitled to claim an exemption for any dependents they financially support. This exemption reduces taxable income so you pay less taxes. In 2008 the amount of the dependency exemption is $3,500 per child. This exemption however, is subject to a phase-out provision such that the taxpayer will lose some of their exemptions the higher their adjusted gross income. In effect, the more money you make, the less valuable the dependent exemptions may be.In North Carolina, if the issue of child support is not resolved by the parents between themselves, a judge will decide not only the amount of child support that each party must provide for the children, but how the child support dependency exemptions are to be allocated. However, in many cases, people with children separate and pay support without the existence of a court order for children living the majority of time with the other parent. Or, people enter into a voluntary child support agreement. Whatever the case, parents who are separated or divorced should know their rights with respect to claiming the children as dependents for tax purposes absent a court order allocating the dependency exemptions to one or both parents.

Pursuant to Internal revenue Code §152(e)(1)(B) the custodial parent is presumptively entitled to claim the children as dependents if: (1) the children receive over half of their support during the calendar year from their parents (a) who are divorced or legally separated under a decree of divorce or separate maintenance, or (b) who are separated under a written separation agreement, or (c) who live apart at all times during the last six (6) months of the calendar year and (2) the children are in the custody of one or both of their parents for more than one-half of the calendar year. Pursuant to treasury regulation 1.152-4, effective July 2, 2008, the custodial parent is defined as the parent with whom the child resides for the greater number of nights during the calendar year. The non-custodial parent (defined as the parent who is not the custodial parent) can claim the exemptions in two circumstances: (1) where the custodial parent releases the claim to the exemption for the year; or (2) the non-custodial parent contributed over one-half of the support for the dependent(s) during the calendar year. Where there is no agreement or waiver with respect to which parent gets the exemption and where a child resides with each parent an equal number of nights during the calendar year, the parent who has a higher adjusted gross income would be deemed to be the custodial parent and entitled to the exemption.

For the release or waiver by the custodial parent of the right to take the child dependency exemptions to be effective the custodial parent must sign a written declaration stating that he/she will not claim the children as a dependents for the specified calendar year. The non-custodial parent must then attach this form to his tax return for the year in which the dependency exemptions are claimed. The Internal Revenue Service provides a form to make this declaration known as Form 8332 which can be downloaded from the IRS website at http://www.irs.gov/pub/irs-pdf/f8332.pdf. A written declaration which is not on IRS Form 8332 must conform to the substance of the form and be a document executed for the sole purpose of making the declaration. A court order or settlement agreement will no longer suffice as a written declaration as of July 2, 2008.

In order for the non-custodial parent to claim the dependency exemptions without a waiver by the custodial parent, the non-custodial parent must prove that he/she contributed over one-half of the support for the children in the calendar year. To accomplish this objective the non-custodial parent must first show the total amount of support for the children from all sources including the other parent or income earned by the dependent (which cannot exceed the amount of the exemption). The term “support” includes food, shelter, clothing, medical, education and also such items as pets, toys, televisions and other entertainment costs. Expenses that are not directly related to any one member of a household, such as the cost of food for the household or rent payments, must be allocated among the members of the household in which the dependent resides. Records and receipts will be required. (more…)

In cases where the income of both parents exceeds $300,000 annually, the North Carolina Child Support Guidelines do not apply. However, the Child Support Guidelines can be used to establish a “floor” or minimum amount of child support. (more…)

Raleigh, North Carolina (Gailor Wallis & Hunt) — In almost every case, one parent will be ordered to provide monthly child support payments to the other parent. In the event that the combined pretax income of both parents is less than $300,000 the court will probably calculate child support using the North Carolina Child Support Guidelines. (more…)