Frequently Asked Questions
DOES MY SPOUSE AND I HAVE TO BE SEPARATED BEFORE WE CAN DIVORCE?
Yes. In North Carolina, you must be separated for one full year before filing for a divorce. However, there is no such thing as “legal separation,” instead, the one year clock begins to run when you and your spouse live in two different residences and at least one spouse has the intent to remain separate and apart.
WHAT IF MY SPOUSE WILL NOT AGREE TO GET A DIVORCE?
In North Carolina, one spouse can obtain a divorce without the consent of the other spouse. As long as you have lived in North Carolina for a minimum of 6 months before filing for the divorce and have been living separate and apart from your spouse for a full year, your divorce will be granted even without your spouses agreement.
Child Support & Custody
CAN A CHILD DECIDE CUSTODY?
No, the child cannot decide custody. However, in North Carolina, the Court can take into consideration the preference of a child that is at least 10 years old.
WHAT IS THE DIFFERENCE BETWEEN PHYSICAL AND LEGAL CUSTODY?
Physical custody relates to where the children live on a day-to-day basis whereas legal custody relates to decision-making for the children (i.e. medical decisions, spiritual decisions, etc.) and one does not determine the other. This means that it is possible (and common) for one parent to have sole physical custody while, at the same time, both parents sharing joint legal custody.
HOW LONG DOES IT TAKE FOR CHILD CUSTODY TO BE DECIDED?
If both parents can come to an agreement on a child custody plan, the agreement can be incorporated into a Consent Order and enforced fairly quickly. However, if both parents are unable to come to an agreement on their own, the process is lengthier. In Mecklenburg County, both parents are required to attend a parenting education class, mediation orientation, and mediation to attempt to come to an agreement. If no agreement is reached, a Judge will decide custody. Based on the Judge’s schedule, it may take a while for the custody case to be heard, however, it is possible to have a temporary child custody determination made in the mean time.
WHEN DOES CHILD SUPPORT TERMINATE?
Unless the parties agree otherwise, child support payments terminate when either the child turns 18 or graduates from high school, which ever occurs later. Although a court cannot force either parent to pay for all or part of their child’s college education, if one or both parents are willing to assist in college education expenses it can be agreed upon and enforced.
CAN CHILD SUPPORT BE CHANGED?
Yes, a party can file a motion to modify the child support amount upon showing that there has been a “substantial change in circumstances” since the previous order was entered. A substantial change in circumstances can be shown in a number of ways such as where there has been a reduction in income, an increase or decrease in the child’s needs, or a change of custody, just to name a few. Additionally, the court presumes that a substantial change in circumstances has occurred if the previous order was entered at least three years ago and there is a difference of 15% or more in the amount owed.
WHO IS ENTITLED TO CUSTODY?
In North Carolina, mothers and fathers have equal rights to custody; thus, there is no presumption that the mother should have custody over the father. There is, however, a presumption that a natural parent should have custody over a third party such as a grandparent or other relative. In a custody dispute, the court weighs a variety of factors to determine the custody arrangement that is in the “best interest of the child.”
HOW IS CHILD SUPPORT DETERMINED?
The North Carolina Child Support Guidelines set specific amounts of child support to be paid based primarily on the parents combined monthly income and the number of children involved. If the parent’s combined monthly income is less than $300,000 the guidelines are used. The guideline amount also takes into consideration the custody arrangement, monthly work-related child care costs, health insurance premiums, and other child support obligations.
Separation Agreement is a legally enforceable document that is singed off on by a judge, which details the rights and responsibilities of each spouse during the separation period needed to obtain an absolute divorce. You do not need an attorney in order to create or enforce a separation agreement, although it is highly recommended that you - at the very minimum - discuss your separation agreement plan with an attorney to ensure that you have the best available options to ensure a smooth transition into the separation period.
WHAT IS A SEPARATION AGREEMENT?
Mediation and Settlement
AM I REQUIRED TO HAVE A SEPARATION AGREEMENT?
North Carolina law requires that spouse's be separated for an entire year before obtaining an absolute divorce. A separation agreement can serve as a ruling document that allows the court to impose a penalty on one of the spouse's for violating certain term set forth within a separation agreement. Although it is not mandatory, a separation agreement is highly recommended to ensure a smooth transition into a divorce, to minimize legal fees associated with the separation process, and to reduce the likelihood of a lengthy trial.
WHAT DETERMINES THE DURATION AND AMOUNT OF ALIMONY?
There are sixteen different factors that can be considered when determining the amount and duration of alimony to be awarded. Some of the factors that are considered are the debts and assets of the spouses, the accustomed standard of living, the duration of the marriage, and the earnings (total income plus any other source of funds) and the earning capacities (amount that could be earned based on skills and education) of the spouses. Alimony payments can be ordered to terminate based on either an indicated termination date or by a certain event such as the remarriage, or continued partner cohabitation, of the dependent spouse or the death of either party.
HOW DOES ADULTERY IMPACT ALIMONY?
Alimony standards change when one, or both, spouses commit an “illicit sexual act” during the course of the marriage. The changes depend on (1) who committed the illicit sexual act, the receiving spouse and/or the paying spouse; and (2) how the actions were dealt with. If the receiving spouse committed adultery during the marriage, he or she will not be entitled to receive alimony; if the paying spouse committed adultery during the marriage, he or she will be required to pay alimony; If both the receiving spouse and paying spouse committed adultery during the marriage, the court has discretion to decide whether alimony will be awarded. If, however, the adultery committed by either spouse was condoned/forgiven, the court will treat it as if it never occurred.