North Carolina Divorce Recovery

Child Custody

Q. How do we ultimately decide who gets child custody and how visitation is settled?

A. State 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.

Q. So State 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.

Q. Do I need to allow my ex his weekend visitation or custody if he isn't paying 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.

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.

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. 

 

[North Carolina Statutes - Chapter 50 - Sections: 50-13.2]

Marriage Annulment - Marital Annulment

Q. Can I get a marriage annulment in North Carolina?

A. An annulment (sometimes called a marital annulment) in this state 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 valid grounds for annulment, serve your partner, and go through the difficult process of proving your allegations.

Q. What are the grounds for an annulment?

• 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
• Mental Defect - Incapable of understanding 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.

 

 

[North Carolina Statutes - Chapter 50 - Sections: 11.1, 51-1.2, 2, 3]

Child Support

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.

Q. Is there somewhere I can go to that will give me a rough idea about how much child support will be required?

A. 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. 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.

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.

Q. How is the typical child support payment determined?

A. Each state employs a guideline or mathematical formula. North Carolina is no different. The state 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 child support will be.

 

Worried about a custody battle? Don't be blind sided by your ex. Learn the facts by owning a complete Child Custody Library on the best strategies for winning or keeping child custody.

 

Q. Is it necessary for us to accept mandated 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.

Q. I can no longer afford the child support payments I was ordered to pay. Can I get them lowered?

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.

Q. Can the court reduce or eliminate my arrears of child support?

A. No. Any accrual that occurred prior to a petition to get child support lowered cannot be reduced or eliminated.

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. State 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.

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.

Q. Is it the law that a new spouse 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.

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. Child support ends at age 18, or through secondary school or age 20, whichever comes first.

 

[North Carolina Statutes - Chapter 50 - Sections: 50-13.4]

How to file for a no fault divorce in North Carolina

North Carolina offers a no-fault process using a "one-year separation" as grounds. To file this way, a legal separation of 6 months will have had to occur and residency of 6 months prior to the filing for one of the parties.

The Petitioner (one who begins the divorce action) files a Complaint and Summons. The other spouse is the Respondent. The divorce filing takes place in the petitioner's home county District Court or that of the other spouse. The summons gets served on the respondent (the other spouse) by a process server or a Sheriff (you cannot serve papers yourself). The Respondent is given 30 days to file a response to the petition to the court.

Other forms that are required are determined by each County District Court. Call the Clerk of the Court to determine what forms are required.

A final divorce decree will contain a Divorce Settlement Agreement. This document will resolve marital issues such as the division of assets and debt, spousal support if any, and if there are children involved, custody, support, and a co-parenting schedule (Parenting Plan).

The Parenting Plan can be a document you don't want to cut corners on. It will determine how, when and where you will co-parent your children. We suggest you prepare your parenting plan by first gathering data on free parenting plan worksheets. Avoid the basic parenting plans on the web. They too often only cover the basics, and you want as many details as possible so that disagreements are minimized.

After completion of the worksheets, sign-up with an on-line parenting plan software provider. An on-line parenting plan allows quick changes to schedules as the activities of you and your children change over time. Paper-copy parenting plans require updates and reprints. On-line plans have ongoing calendars that permit both parents to plan and review complex schedules. The ability to track child-related expenses and parenting time are handy features of on-line plans.

One woman told us that she and her ex agreed that unless a change or addition to the kids schedule has been discussed AND agreed upon, it won't appear on the online calendar, and if it doesn't appear on the calendar, it ain't happening.

The on-line plan prints out nicely as a part of your initial filing (Divorce Settlement Agreement) and can be a valuable tool should you have to go back to court for changes in child support or custody down the road.

North Carolina doesn't make divorce forms available on line. To avoid travel, parking and standing in lines, download your divorce forms now.

 

See our discussion on Do-It-Yourself Divorce

Your North Carolina Guide to Child Custody or Visitation and/or Support

Legal Separation - Marital Separation

Q. What does the term "absolute divorce" mean? Do we need a legal separation first?

A. An absolute divorce is simply a termination of your marriage. The divorce laws in this state 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.

Q. Is there such a thing as a legal separation in this state?

A. A legal separation can mean different things in different states. A one year separation (separate residences) is required to get file for a divorce. No proof is required beyond swearing under oath that the marital separation took place. The separation legally began on the first day the couple lived apart from each other.

Q. If my spouse has extra-marital relations with someone else during the one year separation required to file for divorce, is that considered cheating, or more importantly, is it adultery?

A. Yes, it is considered adultery up until the moment you are divorced. In fact, NC defines adultery as any sexual relations between a man and a woman who are not married and cohabitating together, whether legally married to someone else or not.

 

 

[North Carolina Statutes - Chapter 50 - Sections: 50-6]

Divorce Settlement - Dividing the marital 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.

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.

Q. What criteria will the court consider when it must produce a divorce settlement for the parties?

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.

Q. We haven't finalized our plans to divorce, but it's coming. My spouse is likely going to try to take as much money or stuff as possible once we split. Is there anything I can do about that?

A. Yes, Lock up the assets. Look into getting a restraining order on all assets and finances.

If you think your spouse might try to hide assets, or spend them, we suggest you consider filing a petition for a financial temporary restraining order. This order prevents liquidating assets or spending money beyond the basic necessities of daily living. You might first consider allocating enough funds to see yourself through, because the restraining order will apply to you too.

[North Carolina Statutes - Chapter 50 - Sections: 50-20]

Alimony -Spousal Support - Maintenance

Q. How is alimony or spousal support (or maintenance) handled?

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.

Q. What criteria does the court look at when considering alimony (or spousal support)?

A. Much like other states, North Carolina courts will consider:

• The marital misconduct of either,
• The relative earnings and earning capacity of each,
• The ages and the physical, mental, and emotional conditions of each,
• The amount and sources of earned and unearned income,
• The length of the marriage,
• The contribution by one spouse to the education, training, or increased earning power of the other,
• How earning power, expenses, or financial obligations of a spouse will be affected by serving as the custodian of a minor child,
• The standard of living of the spouses established during the marriage,
• 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,
• The assets, liabilities and debt service obligations of each,
• Property brought into the marriage,
• The contribution of a spouse as homemaker,
• Any other factor deemed important.

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.

 

Concerned about custody and visitation issues in the future? Will your spouse try to take advantage of you? Get an online parenting plan and set up the calendar before you get divorced, and adjust it to the court ordered visitation schedule. If your ex knows it's online and you are documenting things, it's less likely you'll be constantly challenged. Click on the demo link to view the program.

 

[North Carolina Statutes - Chapter 50 - Sections: 50-16]

Visitation - Scheduling the kids with each parent

Q. Can my soon-to-be ex and I put together our own 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.

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.

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 and any other matters that would reduce the friction in the future.

 

Concerned about custody and visitation issues in the future? Will your spouse try to take advantage of you? Get an online parenting plan and set up the calendar before you get divorced, and adjust it to the court ordered visitation schedule. If your ex knows it's online and you are documenting things, it's less likely you'll be constantly challenged. Click on the demo link to view the program.

 

The North Carolina Bar Association has an explanation of visitation on its web site that pertains to this topic. It reads:

The question: What are Visitation Rights? From the NC Bar Association web site, the answer:

"If one parent has custody, the other has the right to have visitation with his or her child. There are no general rules about when and how much visitation the non-custodial parent should get. That depends on various factors including the ages of the children, the children’s schedules, how far apart the parents live, and the work schedules of the parents. When determining a visitation schedule for the noncustodial parent, the parties (or the court) should consider weekdays, weekends, holidays, and summer. As with custody, the parties may agree on visitation in an Agreement. If they cannot agree, they can try mediation or arbitration. If they do not wish to try mediation or arbitration, they can go to court and let a judge decide."

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.

[North Carolina Statutes - Chapter 50 - Sections: 50-5.1 and 50-6]

Grounds for divorce

Q. What are the grounds for an absolute divorce?

A. You must 1. 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, or 2. Your spouse must suffer from incurable insanity. Fault-based grounds such as adultery are not available in North Carolina.

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.

 

[North Carolina Statutes - Chapter 50 - Sections: 50-5.1 and 50-6]

Residency - You must qualify as a resident to file

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 this state 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.

 

 

[North Carolina Statutes - Chapter 50 - Sections: 50-8]

Mediation - Using a Mediator to settle marital differences

Q. Does the state 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 courts will order the parties to either if it feels the parties will benefit from it.

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.

[North Carolina Statutes - Chapter 50 - Sections: 50-13.1]

Grandparents visitation

Q. Can grandparents ask for and receive visitation privileges?

A. Yes. State law permits grandparents the right to petition the court for visitation.

Q. How does a grandparent go about getting custody during the divorce of the adult child?

A. A grandparent can join the suit of an adult child's ongoing action for divorce or separation, and if that isn't possible, the grandparent can petition the court on their own. Once the divorce or separation has become final, and the grandparent wasn't provided visitation, that grandparent must petition the court in their own separate action. Needless to say the simplest and most cost effective way would be to join the adult child's action. [50-13.2]

 

 

 

[North Carolina Statutes - Chapter 50 - Sections: 50-13.5]

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. There are no restrictions against remarriage following a divorce decree.