Alternative Dispute Resolution (ADR)
Child Custody In North Carolina
North Carolina Child Support
Asset and Debt Division
- ADR Available: Yes
- Fault or No Fault: No Fault
- Parenting Plan Required: No
- Property Distribution: Equitable
Grounds For Divorce
In order to file for divorce, couples can cite irreconcilable differences but must also live separately for one year. Under no-fault divorce, it is not necessary to prove a spouse’s behavior is the reason for the demise of the partnership. Absolute, or no-fault divorce, can be filed for reasons of incurable insanity as well, and under this ground, spouses must live separately for three years.
The Divorce Types In North Carolina
Although most divorces in North Carolina are filed using irreconcilable differences, spouses have the option to end a marriage based on fault as well. A divorce from bed and board is North Carolina’s unique variation of a fault proceeding and has distinct situations that need to be present. The grounds for a bed and board divorce are:
- Malicious intent
- Cruel treatment
- Indignities causing an intolerable life
- Excessive drug and alcohol use
There are two types of divorce in North Carolina including:
- Uncontested Divorce, in which the parties agree to all the issues surrounding child support, visitation, marital property and alimony, among other areas.
- Contested Divorce, in which there are disagreements on one or many issues between the spouses.
Divorce Waiting Period
For an uncontested divorce, the waiting period is typically 30 days. In a contested proceeding, the waiting period can be longer. One of the spouses must be a resident of the state of North Carolina for at least six months.
Alternative dispute resolution (ADR) is a way for spouses to resolve the issues of divorce and avoid a lengthy adversarial process. ADR can benefit couples by saving time and money. In this somewhat informal method, a mediator can help to promote effective communication between the spouses, explore options to resolve differences and facilitate solutions that work for the family involved. In North Carolina, ADR can include either of these types:
- Arbitration. A neutral third party will listen to both sides and then decide on the outcome. The mediator is typically a judge or a lawyer, and the outcome can result in final settlements or just recommendations.
- Mediation. A neutral third party will work with the couple to sort through the issues of divorce, but the decisions remain with the spouses.
In collaborative divorce, spouses negotiate with one another in the presence of lawyers and other necessary financial professionals to end the marriage. In this method, there is no time limit on which to complete the process. When couples choose a collaborative divorce, they are in mutual agreement of avoiding a court proceeding.
Getting an annulment in North Carolina requires that specific evidence is given to the court which shows certain grounds exist. Essentially an annulment legally “voids” or makes the union “voidable.” Some of the conditions that meet the grounds for an annulment include:
- A spouse was already married.
- A spouse was forced into marriage.
- A spouse committed fraud.
- A spouse was under the age of 16 years old.
- A spouse was impotent.
- Spouses were close family relatives.
In the case of bigamy and incest, the marriage was never legal to begin with and therefore considered void by the court. For the other annulment conditions, the court deems these cases as potentially voidable marriages.
Child Custody Determinations
Adjusting to a new family dynamic can be especially hard on children in a divorce. Judges that reside over child custody cases understand the difficult transition and award custody based on the best interests of the children. The custody forms in North Carolina can be either legal or physical. Each type maybe shared between spouses or awarded to just one caregiver. The factors a judge will consider in determining custody are:
- The ability of each parent to provide a nurturing environment
- The child’s relationship with each parent
- The mental and physical health of each parent
- Where the child has lived and which parent has been the main caregiver
Custody rulings depend on the situation in which the children are involved. The court will deny custody in harmful environmental situations, such as if there is evidence of domestic abuse, sexual violence, neglect or abandonment.
The court system in North Carolina generally holds the position that it is in the best interests of children to have time with both parents. If one parent is awarded primary custody, the noncustodial parent will likely have visitation. There are two visitation arrangements, including:
- Reasonable visitation is set up on an arrangement that works for both parents and can be flexible in nature, accommodating dynamic schedules.
- Structured visitation has a regimented schedule which may include a parent seeing his or her children, for instance, every other weekend. The arrangement is decided during the divorce process and once agreed upon, is final.
In North Carolina, parents that are considered “fit” by the court to be stable and nurturing caregivers also have the final say on the individuals that are present in the lives of their children. It is not possible to file a separate motion for visitation privileges outside of a custody order in North Carolina; therefore, grandparents have limited rights to seek time with children.
Every parent is obligated to tend to the needs of his or her children. In North Carolina, child support is calculated by using a basic formula that incorporates specific information to arrive at the appropriate payment amount. Some of the most important factors are:
- The number of children
- The number of overnight stays
- Monthly gross income of each parent
- Adjustments including health care costs for the children
For families that make over $25,000 a month, the state calculator doesn’t apply. In situations involving high-asset divorce, it’s wise to speak to an attorney for a proper calculation of child support.
Child Support Enforcement
To ensure that child support is paid, the court will enact consequences for any parent that falls behind or is delinquent on payments. Both state and federal repercussions may apply, potentially including:
- Interception of tax returns
- Passport denial or revocation
- Property liens
- Levy on bank accounts
- Loss of driver’s or professional license
- Income withholding
When a father has established paternity of his children, he immediately acquires certain rights. A father has the right to petition the court for visitation rights after determining paternity. Additionally, knowing paternity is beneficial for children in order to know medical history and for obtaining life insurance benefits from either parent. Perhaps most important, the lives of children are enhanced emotionally with the presence of both parents.
When spouses are faced with dividing marital assets, a situation can become contentious. In North Carolina the definition of a marital asset and a separate item remains the same, regardless of the length of the marriage. Debts and assets acquired in the marriage belong to both parties unless:
- There is a prenuptial agreement
- Property was owned before the marriage
- If property was a gift or an inheritance
Division Of Property
Because North Carolina is an equitable division state, property is not necessarily split in equal amounts between spouses. The court will review many factors within each divorce case to divide property accurately. A judge will consider:
- The income and liabilities of each spouse
- The physical and mental health of each spouse
- The needs of the custodial spouse to keep the family home
- Pensions and other retirement accounts
- The tax consequences of keeping certain property
- The contribution of each spouse to the assets and household
Other aspects might play a role in the final property settlement. The court strives to make determinations on marital assets and debts based on what is fair to each spouse.
Alimony, or spousal support, refers to providing income to a former partner after a divorce. Spousal support may be awarded to the person that will have a hard time being financially stable after the marriage is dissolved. In situations where a spouse was the sole income provider and the other person remained home to care for the children, alimony could be awarded. Like property division, the court will look at many factors when ruling on alimony.
Prenuptial and Postnuptial Agreements
Couples that want to protect property in the event of a divorce can construct either a prenuptial and postnuptial agreement. Both agreements serve as planning tools for those with property, a business or children from other relationships. Further reasons for a prenuptial or postnuptial agreement include:
- Securing a business from division
- Protecting intended beneficiaries
- To safeguard a significant gift, for instance, stocks or bonds
- Alleviating financial strains and strengthening spousal relations
If there is one thing in life that can be counted on it is that circumstances can change. Sometimes these changes are abrupt and can be financially burdensome, creating the need for court-approved post-divorce modifications. Whether due to job loss or relocation or another significant change, some of the areas in which a previous agreement may need to be altered include:
- Spousal support
- Child custody
- Child support