North Carolina requires that the parties have been separated for at least one year before filing for divorce. Both parties do not have to live in North Carolina to file for divorce in North Carolina. The requirement for residence is met if at least one party has resided in North Carolina for at least 6 months before filing for divorce.
North Carolina allows parties to file for divorce anywhere in North Carolina because North Carolina has jurisdiction over the divorce. Venue is determined where the parties reside at the time of filing for divorce. Parties may file anywhere in North Carolina unless the other party objects for improper venue.
A divorce is started by filing a complaint with the Court. Residence and subject matter requirements are listed along with any children. Property and alimony claims may also be addressed. The complaint is served on the Defendant. The Defendant, after service, has 30 days to respond. After the time has expired, the Plaintiff may seek the divorce.
Divorces may be granted without either party appearing in Court. This process is called “summary judgment”. It does take a few more weeks to achieve the divorce. If time is of the essence, one or both parties may appear in court to get the divorce in a more timely manner.
Occasionally, one party may not want to divorce. That’s when it is important to talk to your attorney about the one year’s separation date. North Carolina courts have made this requirement very strict. Please discuss this with your attorney to make sure that you can divorce as quickly as you desire.
The North Carolina legislature more requires that an affidavit be filed with your divorce complaint stating the military status of the Defendant. This form must be completed correctly. Failure to correctly fill out the military status can delay the entry of your divorce.
A Separation Agreement is a written contract between a divorcing couple. Each party agrees upon the content contained within the agreement. A separation agreement may divide retirement benefits, alimony or custody of children. A separation agreement may allow the parties to separate immediately and hold open other issues to be determined at a later time.
Couples may legally draw their own separation agreements. However, I
strongly discourage this approach. Clients generally do not know the law. On many occasions clients have come in to see me after realizing that they
contracted away important rights such as alimony, adequate child support, or retirement benefits. The time to save important rights is before you sign them away! On line fill-in -the -blank separation agreements generally do not comport with North Carolina law. Your sister-in- law’s separation agreement from 20 years ago is probably not the best template to use.
North Carolina has many statutory requirements regarding separation
agreements. The requirements must be followed or the separation agreement may be set aside. Thus an agreement you borrowed may inadvertently cause you to loose important rights.
Custody is usually discussed in terms of legal custody. Without a court order, biological parents have legal custody of their children. That means when a couple separates, each parents has the right to their children. If the parents cannot agree upon a custodial arrangement, court intervention is required.
Between parents, the Courts use the “Best Interest “ of the children to determine an initial determination. Factors the Court can consider include stability of housing, income, drug use, infidelity, other siblings in the home, and educational opportunities with one parent. Of course, other factors may come into play dependent upon other circumstances.
Children born out of wedlock raise interesting legal questions. Courts generally require DNA tests to determine paternity absent consent of the parties.
Lack of space prohibits me from giving more a more detailed analysis. Please remember that every case is unique. Please call me to discuss your most important asset—your children.
Child support, in North Carolina, may be an amount agreed upon between the parties or ordered by the Court. Parties may agree upon an amount of support to avoid a court appearance or extenuating circumstances may exist. Some examples of extenuating circumstances may include extremely high income of either party, large uninsured medical bills for the child or children, or perhaps extremely high private school tuition. The important idea to remember is that this is an agreement between the parties. Both sides must agree to the amount of child support if choosing to vary from the guidelines.
If the parties are unable to agree on child support, then the North Carolina Child Support guidelines are used. North Carolina has adopted the guidelines which use a formula to compute the amount of child support. Both parties’ income are used to determine the correct amount of support. Many clients assume that because two or more children are involved that the amount of support doubles or triples with multiple children. That is not the case. However, parties do receive credit for children from other marriages or relationships. Day care and health insurance expenses are factored into the formula.
Child support, whether by agreement or pursuant to the guidelines, may be paid directly to the recipient or through North Carolina Centralized Support in Raleigh. A nominal fee is charged if paying through Centralized Support. I generally advise clients to pay through Raleigh if at all possible. This guarantees a written record of payment and disbursement. This simple method cuts down on the potential for future conflict between the parties.
Child support may be paid weekly, bi-weekly, bi-monthly or on a monthly basis. I admonish clients to remember that child support must be paid while on vacation or while they have the children.
Divorce from Bed and Board
Court ordered legal separation.
Termination of Parental Rights
Under North Carolina law, the bond between parent and child is the strongest legal relationship. Because the bond is so strong, the court proceeding to terminate the relationship is held to a higher standard than in most civil cases. The Court must find by clear, cogent, and convincing evidence that the grounds to terminate the parental rights have been met AS WELL AS that it is in the child’s best interest.
The specifics of the law have evolved but generally abandonment for at least six (6) months, failure to pay child support, neglect and a few other statutory grounds must be specifically pled in the Petition to begin the procedure.
To begin, a verified petition is filed at the court house alleging that the grounds to terminate exist. The non-moving parent is appointed provisional counsel to represent them at the hearing. Of course, the parent may choose to represent themselves or hire their own attorney. The non-moving parent (or Respondent) must be served with a copy of the Petition. North Carolina law is very specific on how service over the non-moving parent must occur.
A trial must be held to terminate parental rights. Consent judgments are not
permitted in termination of parental rights cases. Each judgment therefore will be unique with the specifics of that particular child and parents.
The statutory requirements still apply should the non-prevailing party desire to appeal.
The trial is usually bifurcated ( divided into 2 parts). The first part requires that the statutory requirements must be met by clear cogent and convincing evidence. If those grounds are met, then the trial moves on to the best interest standard. The judge must be convinced that it is in the child’s best interest that rights be terminated. The possibility of adoption is usually considered in the child’s best interest.
As you can see, terminating parental rights can be challenging. I do not
recommend attempting this without the advice of an experienced family law
attorney. Your child’s future is too important to be left to an inexperienced
Power of Attorney
Formal document allowing someone to act on your behalf.
Formal disposition of your estate upon death
Legal assumption of parental/child relationship.
Amendments to birth certificates.
Birth certificate amendments
Formal change to birth certificate.
Division of marital property after separation.
Entered into before marriage determining certain rights and obligations.
Mediation is the opportunity for parties to meet outside court in an attempt to settle their lawsuit. Custody, child support, equitable distribution and alimony may all be mediated.
In North Carolina attorneys may choose their mediators. If they are unable to agree on the mediator, then the court will choose the mediator. Attorney
selected mediators do not have to be certified, but mediators chosen by the Court must be certified. North Carolina currently has Superior Court along with Family Financial mediators.
Mediation certification requires a 48 hour course. After completion, the applicant must take certain courses to demonstrate a basic knowledge of the subject area or show proof of knowledge. Mediators must also take a 2 hour annual course to maintain certification.
I think mediation has changed the practice of family law for the better. This
process allows parties to air their grievances without the necessity of a court trial. Family law has become quite technical in the last few decades. Many of the District Court judges lack the back ground in Family Law to adequately deal with multimillion dollar equitable distribution cases. The success of mediation is directly related to the skills of the attorneys involved and the mediator. Mediation also allows some creativity and flexibility in drafting Orders. In my experience, clients who participate in mediation usually do not return to court on contempt charges.
I mediated cases for years before becoming certified in July 2016. I mediate
cases in Gaston, Cleveland, Lincoln, and Mecklenburg counties.