Have you and your spouse decided to go your separate ways?  

Do you have children that will be impacted as a result of the separation and/or divorce?  

Are you familiar with the laws for divorce, child custody, and child support in North Carolina? 

 

Whether you have been married for less than a year or for more than 30 years, if legal issues arise we are here to help.  Each family is different so it is extremely important to schedule a consultation as soon as possible in order to determine your legal options.  One size does not fit all when it comes to your family.  Attorney Phelps understands first-hand, after going through his parents’ divorce that family issues can be stressful, emotional, and hard on everyone affected by the situation. Our firm is willing and able to help you through this difficult time while remaining sensitive to your situation.  We assist clients with the following cases:

Child Custody

In order for a court to grant custody, the court must find that the person is a fit and proper person to have custody and that custody with that person is in the best interests of the children.  There is not a presumption favoring mothers over fathers. All other things being equal, mothers and fathers have equal rights to the custody of their children.  There is a presumption favoring natural parents over third parties, such as grandparents, aunts, and neighbors.  Natural parents have protected rights to parent their own children.  However, natural parents can lose those protected rights if they take action that is inconsistent with the best interests of the children.

Sole custody means that one person has primary physical custody of a child and decision-making power over that child. Joint custody means shared custody.  It does not necessarily mean equally shared physical custody.  When parents have joint custody, they share in major decisions about a child, and typically each parent has the child more than every other weekend.  For joint custody to be successful, the parents need to be able to communicate effectively and to cooperate in parenting their child together.

Custody may be agreed upon by the parties.  If it is, the parties may set out the terms of their custody agreement in a Separation Agreement.  This agreement is usually not filed with the court.  If the parents are unable to agree on their own, 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.

Custody and visitation arrangements are always subject to change when circumstances affecting the child’s best interests change substantially.

Child Visitation

If one parent has custody, the other has the right to have visitation with the child.   There are no general rules about when and how much visitation the noncustodial 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 non- custodial parent, 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.

Child Support

If both parties’ combined income is less than $240,000 per year, child support is determined based on the North Carolina Child Support Guidelines.  There are generally four numbers that are needed to calculate child support: 1) Mother’s gross monthly income; 2) Father’s gross monthly income; 3) Children’s portion of the monthly health insurance premium; and 4) Work-related childcare costs.  If either parent has other children in the home or for which he or she pays child support, those numbers are included in the calculation as well.  There are different worksheets used in the calculation depending on the custodial arrangement.  The Guidelines and the worksheets are available at the Clerk of Court.

Child support generally terminates when a child turns 18 or graduates from high school, whichever occurs later.  If the child turns 18 before graduation, child support continues until graduation.  If the child graduates before turning 18, child support continues until the child turns 18.  Child support may terminate earlier or extend later but only in certain rare circumstances.

Either parent may seek a change (increase or decrease) in child support at any time if a substantial change in circumstances has occurred after the order was entered by the court.  A substantial change in circumstances is presumed by the court if the request to change the support order is made three or more years after the entry of the order and there is a 15% differential between the amount of support being paid and the amount of support that would be required with new calculations under the Guidelines.

Separation and Divorce

Separation happens automatically once husband and wife begin living separate and apart and at least one of them has the intent to remain separate and apart.  You are legally separated once you begin living separate and apart and at least one spouse intends to remain that way.

There are two main grounds for divorce: 1) Separation for One Year; or 2) Incurable Insanity of One Spouse and Separation for Three Years.  The vast majority of marriages are dissolved based on the ground of separation for one year.  In order to get divorced, you must have been separated for one year and at least one spouse must have had the intent to remain separate and apart.  In addition, one of you must have been a resident of North Carolina for at least six months.

Cite: This Is Law Pamphlet, Separation and Divorce, Sponsored by the North Carolina Bar Association

Cite: This Is Law Pamphlet, Child Custody/Visitation and Child Support, Sponsored by the North Carolina Bar Association