Question:
I am active duty military who worked very hard for many years to secure 50/50 joint custody with my two children. I still pay child support. In two years, I will be forced to retire from the military because to accept another assignment would mean forfeiture of my 50/50 custody. This would constitute an “involuntary” retirement because staying on active duty would be very beneficial for both my career and my children. Because I will have leave the military, I will need to return to school to find a place in the civilian work force.
Will the judge assigned to our case see my involuntary retirement from the military as “shirking” or can the judge actually “force” me to stay on active duty and involuntarily give up my 50/50 custody, stating that it is somehow irresponsible to change the financial dynamics?
Answer:
Your question does not state whether there has been a motion to modify or not. If there is no motion, then your child support obligation will remain the same until someone files the motion. If either party files the motion, then the issue of voluntary v. involuntary comes into play.
In North Carolina an involuntary decrease due to a loss of employment is a basis on which you can modify your child support and make it lower. While North Carolina case law views a “loss of job” as being laid off, courts have found that quitting a job can be involuntary, depending on the motivation. The decrease is voluntary if it shows a disregard for your parental obligations. Therefore, retiring from the military to spend more time with your children may be seen by the law as a sort of involuntary loss of your job and decrease child support. However, the law could see the opposite and view your retirement differently. It depends. It is not clear as to how the law would rule in your situation and more specific facts are needed.
In terms of your leaving employment to go back to school, it depends. There is also case law out there stating that leaving employment for school may represent a decision with due regard for the long-term welfare of the children; thus viewing leaving employment as involuntary. However, there are no clear bright lines of what, under the law, will be considered “involuntary.”
It is a case by case basis and you would need to speak to one of our Charlotte attorneys to get a better understanding of how the specifics of your case may play out.
In summary, it really depends on a number of factors as to how our courts may rule and more details are needed to properly answer this question.
Andrea Miller is a Staff Attorney in the Charlotte, N.C., office of Cordell & Cordell where she practices domestic relations exclusively. Ms. Miller is licensed in the state of North Carolina. Ms. Miller received her undergraduate deg ree in History and her Juris Doctor from the University of North Carolina at Chapel Hill. While in law school, she on the Client Counseling Team for Moot Court and became a board member. Ms. Miller also participated in UNC’s Legal Assistance Clinic whereby she helped represent indigent clients obtain legal counsel primarily in the area of domestic relations.
