North Carolina divorce laws allow parents to complete a Visitation Schedule and a Parenting Plan. Get these documents done before the court
gives you its own generic cookie-cutter version. In order to develop a good parenting game plan, you'll need to gather all of your information and resources in one location. If you are using a lawyer, he or she will do that for you at the going rate ($) per hour. Another way to go would be for you to do the things you can to mitigate costs.
Fortunately you can do much or all of this on-line. Are you looking for a cohesive 'sticky' place to keep all your information? Want a Parenting Plan you can hold your ex accountable to, and resources that can give you a BIG advantage? Go here |
You will need certain forms to complete your divorce whether you do your divorce yourself or have a lawyer represent you. What forms you will need will depend on whether you have kids from the marriage (or not), if you have meaningful assets (or debts ), or how complicated your divorce may become.
Lawyers will do it all for you at their rate per hour. If you are looking for a way to cut costs, you might consider completing the forms IN ADVANCE of meeting with a lawyer. You can find those divorce papers here. In some locations, you can get some of these forms free from the county clerk's office. We find many prefer to avoid the travel, parking costs and hassles of having to pick them up and instead prefer to conveniently download them to their computers. |
 North Carolina child support
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Okay. So 'until death do us part' really wasn't until death, and while it may feel like
death before its over, it'll be okay. Few of us ever go into marriage with our eyes wide open. However, you will survive
this. You will. Take a deep breath. If nothing else, we'll give you some answers and ease your anxiety. |
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| Q. |
My spouse and I are separating. Do NC divorce laws permit temporary child
support payments or spousal support payments? |
| A. |
Yes, both child support and spousal support (alimony) payments are possible. You will
need to petition the court, and provide a financial statement. If that is beyond your means, you can contact the NC Child
Support Enforcement division and have them assist you. |
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| Q |
Is there somewhere I can go to that will give me a rough idea about how much child support
will be required? |
| A. |
North Carolina's child support guidelines are based on the "income shares" model,
originated on the concept that child support is a shared parental obligation and that a child should receive the same proportion
of parental income he or she would have received had the parents remained together. The court will calculate what child support
payments are due based on current income. Should a parent be intentionally unemployed or underemployed, the court will impute,
or assign, an amount that parent should be earning and use that figure. NC child support payments made under any previous
court order are deducted from the gross income of the payor. For a general idea on what child support payments may be due,
see
charts here. For NC child support
enforcement info, refer to this link. |
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| Q. |
I can't afford a lawyer, but I know I need one. What can I do? |
| A. |
There are any number of organizations that provide free legal advice. Contact the North
Carolina Bar Association using the link above and they will refer you. Also be aware that if one spouse has complete control
of the marital money and does not allow the other spouse access to hire an attorney, the court can order the attorney fees
be paid out of the funds of the controlling parent. |
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| Q. |
How is the typical child support payment determined? |
| A. |
Each state employs a guideline or mathematical formula. North Carolina is no different.
North Carolina uses the 'Income Shares" model which takes a specific percentage from the parents' gross income. Review
the charts link above to determine if you'd like to use a child support calculator or just get a rough idea
what North Carolina child support will be. |
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| Q. |
Is it necessary for us to accept North Carolina child support amounts, or can my divorcing
spouse and I agree to our own guideline? |
| A. |
The court will permit you to arrive at an agreed-upon child support schedule, but it must
be submitted to the court for review. If your proposal is deemed in the best interest of the child and complies with state
laws, it's likely it will be accepted. |
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| Q. |
I can no longer afford the child support payments I was ordered to pay. Can I get them lowered? |
| A. |
Modifications to NC child support orders can be made if one petitions the court and demonstrates
a significant change of circumstances. Even if you merged your divorce agreement into the divorce judgment, you can still
have it modified. This course also applies to one petitioning the court to raise the amount. |
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| Q. |
Can the court reduce or eliminate my arrears of NC child support? |
| A. |
No. Any accrual that occurred prior to a petition to get child support lowered cannot be
reduced or eliminated. |
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| Q. |
If you sign over your parental rights to a child do you still have to pay child support? |
| A. |
It really will depend on your jurisdiction or state. NC child support laws provide that
signing over parental rights does not necessarily relieve one of the child support obligation unless the other parents agree.
Where adoption is involved, being relieved of child support is more frequent. |
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| Q. |
I want joint custody so I don't have to pay any child support. How can I get this done? |
| A. |
With joint physical custody there is still a payment of child support from the higher income
parent to the lower income parent, usually determined by a sliding scale based on time with each parent |
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| Q. |
Do North Carolina divorce laws require that a new spouse have to pay child support? |
| A. |
NO, a new spouse is not legally obligated to support the children of the new spouse's previous marriages
or relationships. However, if the new spouse has joint assets (such a Community Property state) or a joint checking account
those assets can be attached. |
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| Q |
I pay child support, and want to know at what age my child needs to be for me to legally stop my child
support payment and instead put it into a college savings plan? |
| A |
NC child support ends at age 18, or through secondary school or age 20, whichever comes first. |
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 North
Carolina Child Custody
| Q. |
How do we ultimately decide who gets North Carolina child custody and how visitation
is settled? |
| A. |
North Carolina divorce laws instruct parents to first attempt to agree between themselves
on shared parenting through a Parenting Plan or Child
Custody Schedule.
Should you and your spouse be able to agree on custody and visitation, and the terms meet state guidelines, the court will
likely accept your parenting time plan. If co-parenting can't be agreed upon, the family court will impose it own plan, which
necessarily makes one parent unhappy. |
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| Q. |
How do North Carolina divorce laws guide the courts in determining who gets NC child custody?
Is it always the Mother? |
| A. |
Mothers get awarded custody the majority of the time. The percentage is thought to be in
at least 75%+ of the cases, and 90%+ of contested cases. The court is to determine the best interests of the child, and consider:
 Availability of parents to the child,
Parenting skills of each
Evidence of child abuse or neglect,
The physical and emotional health
of each parent,
Environments of each parents home,
Willingness of a parent to encourage
the child's relationship with the other parent,
Preferences of a mature child,
Who has been the child's primary caretaker
or
Any agreement between the parents. |
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| Q. |
Do I need to allow my ex his weekend visitation or custody if he isn't paying North Carolina
child support? |
| A. |
You most certainly do. Understand that paying child support and parenting a child through
custody or visitation are two separate issues. One doesn't impact the other, and you could be cited for contempt of court
if you refuse the visitation. |
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| Q. |
Can my wife move out of the area, or even out of state with my children? How do I prevent
that. |
| A. |
If she hasn't moved yet, you should get an attorney ASAP and have a restraining order issued
before she leaves. During your divorce process this issue should be covered, and what is allowable should be spelled out.
Often, the final decree orders that the custodial parent is restricted from moving more than a specified distance (50 or
75 miles) away without very good cause and permission both from you and the court. Get an attorney right away. |
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| Q. |
I have a 15 year old son, and after a visit with his father, my son told me he wants to
finish high school with his Dad in another state. Can he and they do this? |
| A. |
A number of issues here. One is jurisdiction, and it sounds like if he's threatening
to take you to court, the venue may very well be forced back where you reside. Another is your son's age. Courts in many
states view a 15 year as old enough to decide with which parent he wants to reside. You better speak with an attorney and
explore your options. A fight with your ex may be fruitless if your son is determined to go there. |
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Need a local Family Lawyer? Don't have a solid referral?
Visitation
Co Parenting
| Q. |
Can my soon-to-be ex and I put together our own visitation
plan rather than
accept the court's plan for parenting time? |
| A. |
Yes, you can. During the divorce process, the parties have an opportunity to negotiate and
agree to a child visitation plan that works well for everyone. Of course, if there is no agreement, the
court can order mediation, or impose a schedule of its own. If you can't get an agreement, you run the risk of getting a
parenting plan you don't like. |
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| Q. |
Assuming no agreement can be reached between my wife and I, what's the typical visitation
(parenting) schedule I can expect from the court? |
| A. |
A standard Visitation
Agreement may include: alternate weekend visitation (3-day
weekends included), mid-week visitation, sharing of the children during periods of school recess -winter, spring and summer,
New Year's Eve, Easter, Rosh Hashanah and Yom Kippur, Thanksgiving, and Christmas with one parent or the other in alternate
years, Father's Day with Father, Mother's Day with Mother, alternate years on the children's birthdays, and open communication
by phone and computer. |
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| Q. |
Any suggestions on what we might include in a Child
Custody Schedule agreement? |
| A. |
We would recommend you consider including language that defines which parent will pick up
and drop off children, what each will do if one parent becomes habitually late, a provision for the right to be called first
if the parent caring for the children needs to make other arrangements such as finding a sitter, and how much much exposure
they'll want for their children should a new partner enter either parents life. Issues such as having those new partners
stay overnight should be decided. Any other matters that would reduce the friction in the future. |
Be aware that you have to guide your side of the divorce. Don't rely that your attorney will think of everything.
You set the course; your lawyer navigates. Get familiar with the state's divorce laws. Participate. If you anticipate any
problems with custody or visitation, we suggest you own Child
Custody Strategies.
Do you know the name of one of the best books available for understanding the problems
and solutions to the challenges of parenting, and teaching your children responsibility? One review describes the book: 'This
is as close to an owner's manual for parents that you will find. Now, parents can embrace mistakes as wonderful learning
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North Carolina Alimony
Spousal Support
Maintenance
| Q. |
How is alimony or spousal support (or maintenance)
handled in North Carolina? |
| A. |
Alimony is awarded in order to help a spouse to achieve independence.
It is paid by the "supporting spouse" to the "dependent spouse". It can be awarded temporarily or permanently. Alimony is more likely to be awarded in cases where one parent stayed home to care for children than if they were out in the work force. However, even employed dependent spouses get awarded alimony. A marriage of ten years or longer often is a benchmark for judges when considering the award of alimony, although there is no specific statute that reflects a minimum length to a marriage for alimony. If the dependent spouse has committed acts of illicit sexual behavior, the supporting spouse is not obligated to pay alimony. By the same token, alimony amounts can vary depending on evidence of marital misconduct by the supporting spouse. Lump sums or periodic payments, with and without termination can be ordered. |
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| Q. |
What criteria does the North Carolina court look at when considering alimony (or spousal support)? |
| A. |
Much like other states, North Carolina courts will consider:
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The marital misconduct of either, |
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The relative earnings and earning capacity of each, |
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The ages and the physical, mental, and emotional conditions of each, |
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The amount and sources of earned and unearned income, |
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The length of the marriage, |
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The contribution by one spouse to the education, training, or increased earning power of the other, |
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How earning power, expenses, or financial obligations of a spouse will be affected by serving as the custodian
of a minor child, |
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The standard of living of the spouses established during the marriage, |
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The relative education of the spouses and the time necessary to acquire sufficient education or training
to enable the spouse seeking alimony to find employment to meet his or her reasonable economic needs. |
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The assets, liabilities and debt service obligations of each, |
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Property brought into the marriage, |
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The contribution of a spouse as homemaker, |
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Any other factor deemed important |
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| Q. |
What are the tax implications of alimony or spousal support? |
| A. |
The supporting spouse pays alimony to the dependent spouse. The
supporting spouse
is allowed a deduction for those payments. The dependent spouse receives the alimony
and it is considered taxable income. |
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Grounds For Divorce
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| Q. |
What are the grounds for an absolute divorce in North Carolina? |
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| A. |
There are only two grounds available to North Carolina residents.
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You must live apart from your spouse for a minimum of one year and swear under oath that that
is true. NC Family Law requires that you maintain separate residences and not engage in sexual relations, and |
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Incurable insanity. Fault-based grounds such as adultery are not available in North Carolina. |
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| Q. |
So there are no fault-based grounds for divorce? |
| A. |
Correct. North Carolina is a no-fault jurisdiction. Neither of you need to prove marital
fault in order to obtain the divorce based on a one-year separation. |
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Marriage Annulment
Annulment of Marriage
| Q. |
Can I get a marriage annulment in North Carolina? |
| A. |
An annulment (sometimes called a marital annulment) in North Carolina is more difficult to achieve than it is in other states, and in those other states it isn't normally an easy process. One must file a petition, cite grounds for annulment that are recognized by North Carolina courts, serve your partner, and go through the difficult process of proving your allegations. |
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| Q. |
What are the grounds for an annulment? |
| A. |
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Consanguinity (or incest) where the party married a person too closely
related, |
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Underage- either party was younger than 16 at the time of the marriage, Bigamy-
either party was lawfully married to another at the time of marriage, |
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Impotency- either is at the time physically impotent, and if either party was |
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Incapable of understanding (Mental Defect) what they were doing at the time of marriage.
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If a marriage took place with an understanding that the wife is pregnant, and there
occurred a separation within 45 days of that marriage, and the couple lived apart for a year, and no child was born within
10 months of that separation, an annulment may be granted. |
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Mediation
Marriage Counseling
| Q. |
Do North Carolina family laws mandate that mediation or marriage counseling
be a part of a typical divorce? |
| A. |
Mediation and/or marriage counseling is, of course, always available privately. The North
Carolina courts will order the parties to either if it feels the parties will benefit from it. |
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| Q. |
How does mediation work for parents with children? |
| A. |
NC gives you and your spouse every opportunity to reach agreement on how you will co-parent your child, and how much
parenting time you each spend with your child. Mediation will be required if it appears to the court that agreement won't
be reached without it. Essentially you have two opportunities to agree- once before you go before a judge, completing a Parenting
Plan and Child Custody Agreement and
then again during mediation. Should your ex be uncooperative you fail at both
opportunities, the court will impose its own plan, and one of you is sure to be displeased. Before a custody case is tried,
the court refers the issue of child custody and visitation to the mediation program. You will both be ordered to attend
the orientation program and at least the first mediation session before anyone can opt out and put the decisions into
the hands of the family court. There is no cost to the NC mediation program. Mediation provides a means by which you two
can have discussions about the care of your children during separation and after dissolution of your marriage. It is important
to note that the mediator will not facilitate the resolution of other issues such as child support, alimony or distribution
of property in mediation. Bring your inside voice and work through your pain to get an agreement if you weren't able to do
so beforehand. |
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Legal Separation
Marital Separation
| Q. |
What does the term "absolute divorce" mean? Do we need a legal
separation first? |
| A. |
An absolute divorce in North Carolina is simply a termination of your marriage. The divorce
laws in North Carolina are somewhat unique in that the components of an overall divorce (child support, spousal support,
custody, assets, etc.) can be resolved without resolving the other components. The divorce can take place after the year
marital separation. |
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| Q. |
Is there such a thing as a legal separation in North Carolina? |
| A. |
A legal separation can mean different things in different states. In North Carolina, a one
year separation (separate residences) is required to get a divorce. No proof is required beyond swearing under oath that
the marital separation took place. |
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Waiting Period
| Q. |
Is there any kind of waiting period in the divorce process? |
| A. |
Excluding the six-month residency requirement, there are no waiting periods, and other than
the year of separation required for a consent divorce, there are no waiting periods. One should be very careful during the
one year "waiting period" that is the separation, and be mindful how behavior with dating and sexual relations
with others can have a dramatic effect on a absolute divorce outcome. |
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Grandparents Rights
| Q. |
Can grandparents ask for and receive visitation privileges? |
| A. |
Yes. North Carolina family laws permit grandparents the right to petition the court for
visitation. |
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Divorce Settlement
Distribution of Assets
| Q. |
We have quite a few assets from the marriage, and I'm concerned how much of
a 'hit' I'm going to take in this divorce? Will my adultery have an impact on the divorce settlement? |
| A. |
Firstly, marital misconduct can play into a court's decision, although North Carolina is
an equitable distribution state, dividing assets roughly 50-50. In a word, adultery is punishable. Secondly, you and the
spouse have the opportunity to craft a separation agreement which settles all issues including dividing the assets. If you
are unable to agree on a settlement, the court will produce its own divorce settlement that is consistent with North Carolina
being an 'Equitable Distribution' state. The judge will return pre-marital assets to their owner, and then divide the balance
of the assets equitably, but not necessarily evenly. |
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| Q. |
My husband wants to offer me a divorce settlement from his retirement accounts (401(k), IRAs, etc)
using a QDRO, but I suspect the offer is very low. Is there somewhere I or we can go to get a fair valuation and distribution? |
| A. |
You have two choices. You can have your divorce attorney prepare a proposal (they usually hire an
outside, third-party for an evaluation) at significant cost, or you can get your soon-to-be-ex to agree to an accurate but
affordable method using The QDRO Desk software. |
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| Q. |
What criteria will the court consider when it must produce a divorce settlement for the
parties? |
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The income and property of each at the time of marriage, and again at the time of the filing for divorce;
the length of the marriage and the age and health of both; The custodial parent's need to occupy residence and its contents;
Any loss of inheritance and pension rights should the action proceed to divorce; any award of alimony or maintenance; the
contributions and services of each spouse to the career of the other; liquidity of all marital property; the probable future
financial circumstances of each; any interest in a business, corporation or profession each may have during the marriage;
taxes; if either party wastefully dissipated any assets prior to settlement; the transfer of any assets ahead of the filing
such that it would deny the other a fair share and judicial discretion over any other issue, or any other relevant fact. |
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Residency Requirements
| Q. |
What are the residency requirements to file a petition for divorce, separation
or annulment? |
| A. |
Residency requirements are that one of the parties must have resided in North Carolina for
6 months immediately preceding the filing of the petition for divorce. In cases where one has resided in NC for a lesser
period, NC courts don't have jurisdiction and won't be able to hear your case. |
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