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 Okay.
So "until death do us part" really wasn't
until death. 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. If you're having a tough time coping,
perhaps you should view
this page first.
Child Support
| Q. |
My
spouse and I are separating. Do North Carolina
divorce laws permit temporary child support or
spousal support (maintenance)? |
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| A. |
Yes, both child
support and maintenance is 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. Look for the link above. |
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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? |
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| A. |
If you click
on the link above that reads Child Support
Guidelines, you'll be taken to charts that
should provide approximate amounts. Your obligation
will be approximately the same % of the overall
parental income e.g. your income is $3,000/mo.
and hers is $2,000 per month, your income is 60%
of the total, so your obligation is approx. 60%
of the child support required. Keep in mind that
deductions can change the final amounts. |
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| Q. |
I can't
afford a lawyer, but I know I need one. What can
I do? |
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| 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? |
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| 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 links
above to determine if you'd like to use a calculator
or just get a rough idea what CS 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 souse and I agree
to our own guideline? |
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| 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? |
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| A. |
Modifications
to 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 child support? |
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| 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? |
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| A. |
It really will
depend on your jurisdiction or state. Family Law
provides that signing over parental rights does
not necessarily relieve one of the child support
obligation unless the other parents agrees. Where
adoption is involved, being absolved 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? |
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| 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? |
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| 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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Child Custody
| Q. |
How do North Carolina
divorce laws guide the courts in determining who
gets child custody? Is it always the Mother? |
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| 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:
1. Availability of parents to the child, 2. Evidence
of child abuse or neglect, 3. The physical and
emotional health of each parent, 4. Environments
of each parents home, 5. Willingness of a parent
to encourage the child's relationship with the
other parent, 6. Preferences of a mature child,
7. Who has been the child's primary caretaker
or 8. 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 child support? |
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| 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. |
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| 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? |
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| 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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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? |
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| A. |
Yes, you can.
During the divorce process, the parties have an
opportunity to negotiate and agree to a 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. |
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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? |
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| A. |
A standard visitation
(parenting) 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 visitation (parenting)
agreement? |
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| 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. |
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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. If you anticipate
any problems with custody or visitation, we suggest
you own Child
Custody Strategies.
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Alimony/
Maintenance/ Spousal Support
| Q. |
How
is alimony or spousal support (or maintenance)
handled in North Carolina? |
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| 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)? |
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| A. |
Much like other
states, North Carolina courts will consider: 1.
The marital misconduct of either, 2. The relative
earnings and earning capacity of each, 3. The
ages and the physical, mental, and emotional conditions
of each, 4. The amount and sources of earned and
unearned income, 5. The length of the marriage,
6. The contribution by one spouse to the education,
training, or increased earning power of the other,
7. How earning power, expenses, or financial obligations
of a spouse will be affected by serving as the
custodian of a minor child, 8. The standard of
living of the spouses established during the marriage,
9. 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, 10. The assets, liabilities and
debt service obligations of each, 11. Property
brought into the marriage, 12. The contribution
of a spouse as homemaker, 13. Any other factor
deemed important |
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| Q. |
What are the
tax implications of alimony or spousal support? |
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| 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
| 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.
1. 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 2. 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? |
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| 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
Marital Annulment
| Q. |
Can I get a marriage
annulment in North Carolina? |
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| 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? |
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| A. |
Grounds include Consanguinity (or
incest) where the party married a person too closely
related, 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, Impotency- either
is at the time physically impotent, and if either
party was incapable of understanding (Mental
Defect) what they were doing at the time
of marriage. In addition, 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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Marriage
Counseling/
Mediation
| Q. |
Do
North Carolina family laws mandate that mediation
or marriage counseling be a part of a typical
divorce? |
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| 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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Legal
Separation/
Marital Separation
| Q. |
What
does the term "absolute divorce" mean?
Do we need a legal separation first? |
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| A. |
An absolute divorce
in North Carolina is simply a termination of your
marriage. North Carolina's divorce laws 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? |
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| 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? |
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| 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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Divorce
Settlement
| 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? |
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| A. |
Firstly, marital
misconduct can play into a court's decision, although
North Carolina is an equitable distribution state,
dividing assets 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. |
What criteria
will the court consider when it must produce a
divorce settlement for the parties? |
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| A. |
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? |
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| 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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