In short, yes. A claim for child support can always be brought to a judge, whether or not a settlement agreement exists.
If your separation agreement left out provisions regarding child support, an action or a lawsuit can be brought by either party. The action or lawsuit can request that a judge set and determine child support. Typically, though, the judge will refer to North Carolina’s child support guidelines in setting the amount of child support.
If your separation agreement includes child support provisions, but your separation agreement was not incorporated into the divorce decree, then your child support agreement is not enforceable as a court order. Instead the separation agreement is only governed under ordinary contract principles. In these circumstances, the parties can amend the separation agreement to change the child support amount; however, they must mutually agree to do so. Alternatively, an action or a lawsuit can be brought by either party, requesting that the court re-evaluate the issue of child support, and then issue a court order specifying the child support amount.
Generally, the court will give weight to the separation agreement, and presume that the child support amount was reasonable. To overcome this presumption, however, a party will need to prove to the court that the child support amount was not reasonable, or not sufficient to support the child.
If your separation agreement includes child support and was incorporated into the divorce decree, then the child support was a part of an enforceable court order. Court orders for child support can be modified by motion, but only under specific circumstances. Although a separation agreement can provide for child support or leave out child support provisions, child support can never be waived and can always be addressed by the court.
If you are dealing with a child support issue and would like legal representation, please feel free to contact Kreger Brodish to schedule a consultation to discuss your case.