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Do I need an agreement or court order to be legally separated?

No. You are legally separated once you begin living separate and apart and at least one spouse intends to remain that way. However, we do recommend obtaining an affidavit from your attorney, which is generally notarized. This document will verify and solidify your date of separation.

Is it ok if we continue to live in the same house?

No. Living separate and apart means you must be living in separate residences.

Does having sexual intercourse with your spouse after the date of separation reset the clock for requisite separation period?

No. As a general rule, if you and your spouse had a few instances of romantic relations after the date of separation will not reset the clock. However, if you move back in with your spouse, this very well may reset the statutory one year separation period.

What do I need to do to get a divorce?

You have to file a Complaint (lawsuit) asking for an absolute divorce. You cannot file a divorce complaint until after you and your spouse have been separated for a year and one day.

Next, you have to serve your spouse with the Complaint. Service is usually accomplished by certified mail or Sheriff. Then you will need a hearing in front of a judge. The judge has to enter a Judgment declaring you divorced.

You are not divorced until the judge signs a Judgment and the clerk file stamps it.

What are the grounds for divorce?

Aside from the divorce from Bed and Board, which is more like Legal Separation, there are only two grounds for an absolute divorce:

  • Separation for One Year; or
  • 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. Fault is not necessary to obtain a divorce.

How long does the divorce process take?

The length of the process varies based on how long it takes to get service of your spouse and how soon the clerk schedules the divorce hearing. Generally, it should take approximately 60 days after the Complaint is filed.

What is the difference between and uncontested and contested divorce?

In an uncontested divorce, both parties agree to the divorce and the situation is generally amicable. In an uncontested divorce in Mecklenburg County, the divorce is generally granted on papers and no court appearance is required. In other words, you and your spouse will NOT have to appear in court.

On the other hand, in a contested divorce, the parties generally cannot agree on most important aspects of the divorce making everything a dispute.

What is the effect of a divorce?

There are many important effects of a divorce and as such you need advice of competent divorce lawyer.

  • The entry of a divorce cuts off your right to alimony and property division. If those claims have not been resolved in a valid and binding Agreement or properly filed with the court prior to the entry of the divorce judgment, they are lost/waived forever. The loss of those claims can be devastating. If you have a claim for alimony or if you or your spouse acquired property during the marriage (house, cars, bank accounts, retirement), you need to consult with our attorneys to protect those claims.
  • The entry of a divorce changes your tax filing status.
  • The entry of a divorce enables you to remarry.
  • The entry of a divorce cuts off your rights to inherit from your spouse.

It can alter the way your house is owned if it’s considered marital abode (may need to refinance)

Can my marriage be annulled?

An annulment is a court order declaring that the marriage never existed due to some defect. Marriages can be declared invalidated only in very limited circumstances, as indicated at Section 3 of Chapter 51 of the North Carolina General Statutes.

  • That section provides that a marriage may be declared void only if:
  • The marriage was between any two persons nearer of kin than first cousins, or
  • Between double first cousins, or
  • Either of the parties is under the age of 16, or
  • One or both of the parties to the marriage was already married to another living person at the time of such marriage, or
  • One or both of the parties was physically impotent at the time of the marriage; or
  • At the time of the marriage, one or both of the parties was “incapable of contracting from want of will or understanding;” or
  • The marriage was contracted under the representation that the female is pregnant, the parties separate within 45 days of marriage, and no child is born to the female within ten months of the date of separation.
How do I change my name back?

You may include a request to change your name in your divorce complaint. The name change can be included in the divorce judgment. You cannot change your name to any name in this process.

You may resume your maiden name. You may also resume a former married name under certain circumstances.

What is mediation?

Mediation is when a neutral third party helps facilitate an agreement between the parties. The mediator does not make decisions. The parties make the decisions, but the mediator helps them along. You can do private mediation before or after a Complaint has been filed. You can address custody, child support, alimony, and property issues in mediation.

Mediation is generally less expensive and not as time-consuming as court. The parties control the outcome. The entire process can be settled in one day, and you can leave a private mediation with a binding settlement document.

The process is very civil and dignified. It can set the tone for how the parties deal with each other from that point forward. If the parties are able to resolve the issues incident to their separation at mediation, typically they work together and treat each other better in subsequent dealings with children or otherwise. You do not necessarily need a lawyer for mediation, but we recommend it. A non-lawyer mediator will not know the law. Without an attorney, you could lose or waive rights you did not know you had.

How is custody determined?

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 or Parenting Agreement, which are not usually filed with the court, or in a Consent Order that is filed with the court.

If the parents are unable to agree on their own, they can try mediation or arbitration. If they do not want to try arbitration, they can go to court to let a judge decide, but in most districts, including Mecklenburg County, they will be required to attend mediation through the court system before they can be heard by a judge.

What about custody, child support, alimony, and property division?

You may resolve these issues by agreement with your spouse, in which case we’ll help you execute a Separation Agreement. In order to be valid and binding, a Separation Agreement needs to follow certain formalities. You should consult with our attorneys for assistance in negotiating and drafting the Agreement. If you and your spouse are not able to agree, you can try mediation or arbitration as alternatives to court.

If those options do not work for you, you will have to file a Complaint (lawsuit) seeking relief in court. Regardless of which approach you choose, you should consult with our attorneys first.

Who is entitled to custody?

In order for a court to grant custody, the court must find that the custodian 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. Judges have wide discretion in deciding what’s in the best interest of your children. Generally, mothers and fathers have equal rights to the custody of their children. There is a presumption, however, favoring natural parents over third parties, such as grandparents, aunts, and neighbors. Natural parents have constitutionally protected rights to parent their own children.

However, natural parents can lose those protected rights if they act inconsistently with their constitutional right to parent their child.

Is custody ever permanent?

No. Custody and visitation arrangements are always subject change when circumstances affecting the child’s best interests change substantially.

What is sole custody?

Sole custody means that one person has sole decision-making power over a child and typically has primary physical custody of that child.

What are visitation rights?

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 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 noncustodial parent, the parties (or the court) should consider weekdays, weekends, holidays, and summers.

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.

What is joint custody?

Joint custody means shared decision-making power over a child, which can by Physical or Legal.

Physical custody is the power to care for child on day-to-day basis with basic physical necessities and determine where the child actually residers. When sole physical custody (sometimes referred to as “primary custody”) is awarded to one custodial parent, the other, non-custodial, parent is typically given visitation rights. Whereas Legal Custody refers to decision making power over child’s health care, education, religion, etc. When parents have joint legal custody they share in major decisions about a child.

Can the child decide on the custody?

No. The court may consider the wishes of older children, but the court will not let the children decide custody or visitation issues.

What is the court procedure in custody / visitation cases?

One of the parties begins the process by filing a Complaint (lawsuit) for custody or visitation. The parties generally must attend mandatory court mediation before a trial will be scheduled.

In some jurisdictions like Mecklenburg County for example, the parties must also attend parental education classes, which can now be attended online. In extreme cases, the court may appoint a Guardian ad Litem to represent the children or a mental health professional to perform a psychological evaluation of the parties and/or the children.

At a trial, the court will hear evidence and will decide what custody and visitation arrangement is in the best interests of the children.

How is child support determined?

If the parties’ combined income is less than $ 300.000 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:

  • Mother’s gross monthly income;
  • Father’s gross monthly income;
  • How many days per year child spends with each parent.
  • Children’s portion of the monthly health insurance premium; and
  • Work-related childcare costs.

If either parent has other children in the home or for which he or she pays child support, those numbers arc 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 www.nccourts.org.

What happens if I don’t pay?

You can be held in contempt or prosecuted for failure to pay child support. You can be put in jail. Your driver’s license and other licenses can be suspended. Your tax refunds can be intercepted. The courts have a host of options to enforce child support orders.

When does child support terminate?

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.

Can child support be changed?

Yes. 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% difference between the amount of support being paid and the amount of support that would be required with new calculations under the Guidelines.

I am NOT a citizen of the United States, can I still adopt a child?

In North Carolina an individual may adopt even if not a citizen of the United States or not here legally, if such adoption would be in the best interest of the child and sufficient information exists to complete an approved pre-placement assessment with the Department of Health and Human Services.

However, the services of an immigration attorney may also be needed to deal with federal immigration and naturalization issues arising from the state adoption.

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