Co-Counsel Bulletins


GETTING COURT-ORDERED SUPPORT

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Most civilian practitioners will tell you that, in order to obtain court-ordered child support, it is necessary to prepare and file a summons and complaint in district court charging that the defendant, usually the father of the child or children, has failed to pay reasonable and adequate child support under the present circumstances.  This requires, of course, a degree of specialized skill not possessed by the layman and, therefore, mandates the use of a civilian attorney.

The military attorney also recognizes that remedies such as garnishment and involuntary allotment do not exist when the support obligation is specified in a separation agreement that is not thereafter incorporated into a further court order or final decree of divorce.  Involuntary allotment and/or garnishment is not available when a separation agreement, standing alone, defines the support obligation.  At the same time, it is seldom wise, when the parties are mutually agreeable as to the terms of child support, to initiate unilaterally a summons and complaint against the father of the child or children; all too often this will upset the delicate balance in the negotiations and cause further expenditure of time, money and goodwill by people who can ill-afford it.  A reasonable alternative for the legal assistance attorney is the use of two "equivalents" of court orders, namely, Voluntary Support Agreements (VSA's) and Confessions of Judgment.

The statutes concerning VSA's are NCGS 110-132, -133 and -136.  The VSA is a preprinted form prepared by the Administrative Office of the Courts, and copies are available at each county courthouse; just ask for AOC-CV-607. Since it is preprinted, fitting in additional information (medical insurance, termination date for support, allocation of support on a per-child basis, payment for uncovered health care expenses, etc.) is pretty difficult if anything more than the amount of child support is contemplated.  The form basically allows for entry of the amount of support for the children or child (but not on a per-child basis, which can benefit the custodial parent) and agreement to provide health insurance coverage when it is available at a reasonable cost, as with employer-sponsored plans or group coverage.

A Confession of Judgment, on the other hand, is prepared on the word processor or typewriter using the form shown below; infinite variations are possible-college expenses, life insurance coverage, findings as to income and expenses, annual increases in support, and so on.  The statute is found at Rule 68.1, North Carolina Rules of Civil Procedure.  A sample Confession of Judgment is found below.

The VSA or Confession of Judgment is used in tandem with the promises set out in a separation agreement.  Typically, the language on child support in the separation agreement is simply "mirrored" in the VSA or Confession of Judgment.  In this way, the promises remain the same and it is easier to persuade the non-custodial parent to sign the additional document with no child support terms modified in any way.  On the other hand, the mechanism for enforcement by the custodial parent is much easier.  Pursuant to the statute involved for each of these procedures, each one is treated as if it were an order of the court, which means that the usual enforcement sanctions (such as contempt of court, performance bonds, garnishment, levy upon and seizure of personal property, lien against real property, etc.) are available to the litigant upon the filing of the motion in the cause to "activate" the VSA or Confession of Judgment.  There is a small filing fee for either document with the Clerk of Superior Court for the county in which the obligor resides.

It is important to have the support made payable through the Clerk of Superior Court in every case of Confession of Judgment or VSA; child support cannot be made payable through the Clerk by separation agreement.  The Clerk of Court can act as the certifying official pursuant to the involuntary allotment statute so as to allow this summary remedy to the child support recipient who would otherwise be forced to pay an attorney to litigate the matter of child support.  The Clerk of Superior Court will, when directed to do so, accept payments of child support (or alimony), keep a record of such payments, and disburse the money directly to the intended recipient as set out in the Confession of Judgment or the Voluntary Support Agreement.

The statute (Rule 68.1) involving Confession of Judgment recites only that the Confession of Judgment needs to specify the terms and dollar amount of the monetary payment or debt owed.  The form shown below shows much more information, and that information is indeed optional.  By including, however, such matters as the incomes of the parties or the reasonable needs of the minor child, the attorney who prepares the Confession of Judgment will be better able to prevent frivolous attempts by either party to modify the support obligation upwards or downwards in the absence of some substantial proof of a change of circumstances.  By laying out in detail the financial circumstances of the parties and the children, the attorney is better able to guard against efforts to change child support based merely on a "change of mind" of one of the two parties.

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STATE OF NORTH CAROLINA
COUNTY OF _____

IN THE GENERAL COURT OF JUSTICE
DISTRICT COURT DIVISION
FILE NO.               

Plaintiff

V.

Defendant

CONFESSION OF JUDGMENT 



STATEMENT OF DEFENDANT

1.       The Plaintiff is a resident of               County, North Carolina.

2.       The Defendant is a resident of              County, North Carolina. 

3.       The minor children of the parties are                                   born                   , 19     , (and                         , born                        , 19       .)

4.       Defendant recognizes that Plaintiff is entitled to reasonable child support pursuant to Chapter 50, North Carolina General Statutes.  The parties desire to reduce this obligation to a judgment by confession of judgment.

5.       The terms for child support herein are consistent with the Child Support Guidelines.  [When the terms do not comply with the Child Support Guidelines, say so and give the reason for variance: The terms for child support herein are inconsistent with the Child Support Guidelines for the following reason(s):]

NOW THEREFORE, according to Rule 68.1 of the Rules of Civil Procedure, Defendant hereby confesses judgment in favor of Plaintiff and authorizes the Clerk to endorse upon this statement and enter judgment for Plaintiff for the payment of the sums below in the manner stated:

a.       Child Support.  Defendant shall pay to Plaintiff for the benefit of the minor child(ren) the monthly sum of $              per child(ren), starting                     , 19        and continuing on the first day of each month until each child(ren) attains age 18.  Payments shall be made through the Clerk at (Clerk's address) to the Plaintiff at (address).  Defendant is currently earning gross wages of about $          per month.  His taxes at present amount to about $         each pay check.  Plaintiff is currently earning about $       net pay each month from her employer.

b.       Medical Expenses.  As part of child support, Defendant shall maintain at all times a policy of medical and dental insurance on the minor child(ren) if they are not eligible for CHAMPUS.  Defendant shall also pay the deductible amount on these policies each year.  After this amount is paid, each of the parties shall be responsible for one-half (1/2) of the uncovered medical and dental expenses for the minor child(ren).  Defendant shall pay to Plaintiff his one-half share within thirty days of receiving a copy of the bill from the health care provider describing the treatment necessary for the child(ren).

c.       Life Insurance.  As part of child support, Defendant shall maintain a policy of insurance for so long as he owes a child support obligation with a death benefit of at least $           insuring his life for the benefit of the minor child(ren).  This shall be accomplished no later than thirty (30) days after the execution of this document.  This shall be accomplished no later than thirty (30) days after the execution of this document.  He shall immediately transfer ownership of said life insurance to Plaintiff or, if it is not transferable, execute an irrevocable assignment of beneficiary form in favor of Plaintiff for the benefit of the minor child.

d.       College Expenses.  [here set out details].

e.       This judgment shall be entered as provided by Rule 68.1 of the Rules of Civil Procedure, and it shall be as fully binding on Defendant as any other judgment.  It shall be subject to enforcement and modification as with any other judgments or orders entered under Chapter 50, North Carolina General Statutes.

Defendant

DATE:                                   

ENDORSEMENT AND ENTRY OF JUDGMENT

Upon the foregoing confession of judgment and verified written statement of the above-named Defendant, the undersigned Assistant Clerk of Superior Court hereby endorses it and enters judgment against the Defendant.  The facts set out above are found to be true and are incorporated herein by reference.

a.       Child Support.  Defendant shall pay to Plaintiff for the benefit of the minor child(ren) the monthly sum of $                   per child(ren), starting                      , 19        and continuing on the first day of each month until each child(ren) attains age 18.  Payments shall be made through the Clerk at (Clerk's address) to the Plaintiff at (address).

b.       Medical Expenses.  As part of child support, Defendant shall maintain at all times a policy of medical and dental insurance on the minor child(ren).  Defendant shall also pay the deductible amount on these policies each year.  After this amount is paid, each of the parties shall be responsible for one-half (1/2) of the uncovered medical and dental expenses for the minor child(ren).  Defendant shall pay to Plaintiff his one-half share within thirty days of receiving a copy of the bill from the health care provider describing the treatment necessary for the child(ren).

c.       Life Insurance.  As part of child support, Defendant shall maintain a policy of insurance for so long as he owes a child support obligation with a death benefit of at least, $           insuring his life for the benefit of the minor child(ren).  This shall be accomplished no later than thirty (30) days after the execution of this document.  He shall immediately transfer ownership of said life insurance to Plaintiff or, if it is not transferable, execute an irrevocable assignment of beneficiary form in favor of Plaintiff for the benefit of the minor child.

d.       College Expenses.  [here set out additional details].

e.       This judgment shall be entered as provided by Rule 68.1 of the Rules of Civil Procedure, and it shall be as fully binding on Defendant as any other judgment.  It shall be subject to enforcement and modification as with any other judgments or orders entered under Chapter 50, North Carolina General Statutes.

Date:    

Assistant Clerk of Superior Court

[rev. 6/28/99]

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