FAQs
Below is a list of frequently asked questions about our services and your rights. Please read them below and call us if you have any questions.
Family Law
Divorce, as well as other legal matters, range in total costs and fees. Each case is different and has its own intricacies. There is no way to estimate the cost of your case without first understanding the facts of your situation, and even then the cost can fluctuate due to settlements, trials and unforeseen occurrences.
If you and your spouse agree on the terms of your separation there are avenues to resolve your case with limited court involvement. We will be able to take the terms of your separation and draft a document which clearly sets out the rights and responsibilities of you both.
North Carolina law allows for the change or modification of a previously entered custody order, depending upon the facts of your case. A custody order can be modified by agreement between you and the other party to your case, or by filing a proper motion before the court and showing a significant change of circumstance affecting the welfare of your child(ren) since your last order was entered.
If you and your spouse are in agreement regarding custody of your children, we can take the terms of your agreement and draft a document which clearly sets out your custody and visitation arrangements, as well as the responsibilities of each of you regarding your children. This document will then be signed by both of you and will become the governing document which you both must abide by.
In North Carolina, child support is determined based upon a set of guidelines. These guidelines take into account the income of the mother and father, health insurance premiums, work-related child care costs and any extraordinary medical expenses of the children.
Spousal support, also known as alimony, may be awarded to either spouse depending upon a variety of circumstances. The purpose of spousal support is to aid the dependent spouse in accounting for his or her decrease in income due to a marital separation and/or divorce. When considering an award of spousal support, the court will look at both spouses’ earning capacity, employment history, the length of the marriage and the accustomed standard of living, among other things.
In dividing marital property and debt, the court will follow a three-step process. First the court will identify and classify all of your property and debt. Secondly, the court will assign a net value to all of your property and debt, as of your separation date. Finally, the court will divide your property and debt in a fair or equitable manner. The division of your property and debt may or may not be equal depending on the facts of your case.
Mediation is used most commonly in property division and child custody cases in Cumberland County. Mediation was developed as a way for both parties to reach an out of court agreement with the help of a third party mediator. It was developed with the belief that if both parties are able to reach an agreement regarding their issues that they will be more satisfied with the outcome than if a judge hands down a decision. Though it is usually required that both parties attend mediation, it is not mandatory that the parties reach a settlement.
Our attorney has years of experience with military clients and is familiar with military specific family law issues such as military retirement, Survivor Benefit Plans and navigating child custody cases where one or both parents face deployments or relocations.
About
Child support is money paid by a parent for the purpose of meeting the reasonable needs of the parent’s child for health, education and maintenance.
Child support can be arranged in several ways.
- Parents can agree on an amount for child support in a Separation Agreement. See the Separation and Divorce Help Topic for more information.
- Parents may sign a Voluntary Support Agreement (VSA). A VSA is a child support agreement signed by both parties and then by the judge. Once a judge signs the VSA, it becomes a court order and is enforceable by the court.
- Child support can be arranged through the Child Support Enforcement Agency (CSE).
- The person who wants to receive child support can file a civil complaint in district court.
Any parent or person who provides care for a minor child living in his or her home can file for child support.
If you are caring for a child who lives with you, you do not have to have a court order granting you custody before requesting child support.
All parents are responsible for supporting their children, unless the parent’s rights have been terminated. If a parent is under the age of 18, his or her parents can be obligated to pay child support until he or she reaches the age of 18. Non-parents are otherwise not responsible for child support.
All children living in the United States are entitled to child support, regardless of the citizenship or immigration status of the child or the parents.
Parents can be obligated to pay child support even if they have joint custody of their children. See below for more information on how child support is calculated.
A child support case can be filed against an alleged father even if his name is not listed on the child’s birth certificate.
You may request a paternity test.
A judge will decide whether to grant your request. If CSE filed the child support case, the agency will require a paternity test. You may be charged for the cost of the test if you are found to be the father.
Child custody and child support are separate legal issues. Even if the other party denies you custody or visitation time, this does not affect your obligation to pay child support. See the Child Custody Help Topic for more information about custody and visitation issues.
Court Process
You have 30 days after receiving a complaint to file an answer with the court.
- If you are the person entitled to receive child support, you should bring any documentation related to expenses paid on behalf of your child. For example, you should bring day care receipts or medical bills for the children. You should also bring proof of your income. If you have other children in the home, you should bring documentation to show that the other children live with you.
- If you are the person who will be paying child support, you should bring proof of your income. You also should bring documentation of any payments you have made to the other person or expenses you have paid for the children. For example, you should bring proof of payment of rent, cell phone or car payments for the custodial parent or proof that you have provided groceries, clothing, diapers, etc., for the children.
The first payment is typically due on the first of the month after the judge enters an order for child support.
Family court is available in some districts / counties in North Carolina. A major goal of family court is to consolidate and assign a family’s legal issues before a single district court judge or team of judges. Parent education programs also may be available. Together, the dedicated family court judges and staff implement policies that promote prompt and just resolution of family law issues. Learn more.
Calculating Child Support
North Carolina’s Child Support Guidelines (find previous guidelines) set the amount of child support that should be paid depending on each family’s financial circumstances. Judges must order the amount of child support set out in the Guidelines unless applying the Guidelines would not meet or would exceed the reasonable needs of the child, or would otherwise be unjust or inappropriate.
There are online calculators that allow you to estimate the monthly child support in your case.
Having other children in your home or paying child support for other children not living with you are factors in calculating child support.
The Child Support Guidelines require a minimum child support order of $50 per month.
Enforcement
If you are represented by the local CSE agency, you should contact your caseworker. Otherwise, you can file a Motion for Order to Show Cause, requesting the court to hold the other party in contempt.
A judge has a number of enforcement options available to address a parent’s failure to pay child support as ordered. Depending upon the circumstances, a parent who fails to pay support as ordered may have wages withheld or be required to serve time in jail.
Modification
Child support orders can be modified after three years, or if there has been a “substantial change in circumstances.” A difference of 15% or more of the child support paid under an existing order and the amount of child support resulting from the application of the guidelines based on the parents’ current income and circumstances is presumed to be a substantial change in circumstance.
If you lose your job, you may file a Motion to Modify. A judge will determine how your unemployment impacts the current order of support.
Children Age 18 and Older
In general, parents are not obligated to financially support a child once the child reaches the age of 18. Parents are required to support a child until the child turns 20 if the child has not yet graduated and remains in high school. In that case, child support will continue until the child graduates, stops attending school regularly, fails to make satisfactory academic progress, or reaches age 20, whichever happens first. Parents can also be required to support a child enrolled in a cooperative innovative high school (CIHS) program until the child reaches age 18 or completes four years in the program, whichever occurs later.
Parents can agree in a separation agreement or consent order, for instance, to support a child through college or to continue supporting a disabled child. Any valid agreement between the parents is binding.
If your child qualifies for support after age 18, you are not required to return to court to continue receiving child support.
Yes. If arrears are owed after the child reaches the age of 18 and has graduated from high school, child support payments continue in the same amount until all arrears are paid.
Ways and requirements to end your marriage or domestic partnership, including separation, divorce, property, alimony, and enforcement.
A separation agreement or other written document is not required to be legally separated in North Carolina. To be considered separated from your spouse, you need to be living in different homes, and at least one of you needs to intend that the separation be permanent. In general, you are not legally separated if your relationship has ended but you still live in the same home, or if you live in separate homes without the intent to be permanently separated (for example, for work purposes).
A separation agreement is a private contract between spouses who are separated or plan to separate very soon. A separation agreement includes agreed-upon terms dealing with various issues related to the separation, such as which spouse is responsible for certain bills, whether one person will continue to live in the marital home, or where the children will live. A typical separation agreement includes the details of separation, property division, spousal support, and if there are children, child custody and support.
A separation agreement is not required to be legally separated from your spouse. However, a separation agreement can resolve many of the legal issues involved in the end of a marriage. For example, you can decide how to divide your property and whether one of you will pay alimony to the other. In some situations, spouses may request that the separation agreement become part of their final divorce order. Spouses who are able to resolve the issues related to their separation through a separation agreement can make those decisions themselves and avoid the need to go to court.
Separation agreements are generally prepared and negotiated by attorneys, who can tailor the agreement to the needs of your family.
Separation agreements must be in writing (not verbal), must be signed by both parties, and both signatures must be notarized.
Yes, you can include provisions about child custody and child support in a separation agreement. However, if one of the parents later files a child custody case, a judge can order a different custody arrangement if the judge believes it is in the child’s best interest. If one of the parents later files a child support case, a judge may change child support if the amount agreed to does not meet the child’s reasonable needs or if there has been a substantial change in circumstances.
In spite of the confusing name, a Divorce from Bed and Board (a “DBB”) is not a divorce. A DBB is a court-ordered separation. DBB orders are available only under limited circumstances where the spouse requesting the order can prove serious fault, such as adultery or drug abuse.
“Postseparation support” is a temporary form of spousal support paid by a supporting spouse to a dependent spouse who is in need of support, after separation but before divorce.
You are eligible to file for divorce, also called an “absolute divorce,” only after being separated for at least a year and a day. This means that you must have been living in different homes and that at least one of you intended that the separation be permanent during that time. To file for a divorce in North Carolina, either you or your spouse must currently live in North Carolina and must have lived in the state for at least six months before the divorce case is filed.
No. As long as you are eligible for a divorce, your spouse does not have to agree to the divorce. If you file for divorce, your spouse does not have to complete or sign any paperwork, file anything with the court, or go to court for the divorce hearing. However, your spouse must receive proper legal notice of the divorce case that you file.
No. Unlike some other states, North Carolina only allows for no-fault divorce, which requires at least one year of separation.
This divorce requires that you and your spouse have been living apart for at least three years because of your spouse’s mental health condition, and that your spouse either has been institutionalized during that time or was found “insane” by a judge at least three years ago. This also requires the testimony of two specialty doctors that your spouse is currently “incurably insane.” In this situation, you do not need to show that you have intended for at least one year that the separation be permanent.
If no one files for property division (by filing a claim for “equitable distribution”) before the absolute divorce is final, both parties forever lose the right to ask a court for a property division. If this happens, you keep only the assets that are either titled in your name or in your possession. If you own any property in both names, this property will stay in both names even though you have divorced. The same rule applies to debts.
If no one files for spousal support before the absolute divorce is final, both parties forever lose the right to ask a court for alimony.
Child custody and child support claims are not affected by divorce. Parents, regardless of marital status, can file at any time for custody of children under the age of 18. Similarly, parents can file at any time for child support for children under 18 (or still in high school and under age 20), regardless of marital status.
You can get a “simple” absolute divorce in North Carolina no matter where your spouse lives, as long as you live in North Carolina at the time you file for divorce and have lived in North Carolina for the six months immediately before filing. Your spouse must be served with the divorce paperwork no matter where he or she lives, though rules about how to serve your spouse depend on the state or country where your spouse lives. In general, if you both lived in North Carolina during the marriage and your spouse has moved away, you can still pursue other claims against your spouse in North Carolina, including property division and spousal support.
Simple divorce hearings are usually very quick. On the day of the hearing, you will testify under oath about the facts that show you are eligible to get divorced.
Your truthful testimony to the court, under oath, can prove your separation. You can also present other witnesses or documents. A separation agreement between you and your spouse can be helpful to show the court.
Equitable Distribution
Equitable distribution is a legal claim for property division, in which a spouse can ask the court for assistance in dividing the assets and debts acquired during the marriage.
You can file a complaint requesting equitable distribution, in which you may also include other requests, such as alimony, child custody, child support, and/or divorce. If your spouse files a complaint against you, you can file your claims in an “answer” (the document filed with the court in response to a complaint). There is not a standard form to file for equitable distribution, and the process is often complicated. Some counties have local rules requiring specific information to be provided at particular times in the court case.
By law, an equal division of marital property is preferred, but if either spouse requests an unequal division and the judge finds that an unequal distribution would be fair, the court may give more of the property or debt to one party than the other. Judges consider many factors in deciding how to divide property. These factors include the incomes, property, and debts of both parties; the parties’ ages and health; the length of the marriage; the contributions of each party to the other’s earning power; the tax implications; and more. Marital misconduct is not a factor in equitable distribution except in cases of financial misconduct after separation.
Alimony is support paid by one spouse to the other, usually starting after divorce.
“Dependent spouses” are entitled to receive alimony from “supporting spouses.” A dependent spouse is someone who is financially dependent on and in need of support from their spouse, who is then known as the supporting spouse. Husbands and wives can both be either “dependent” or “supporting” spouses.
There are no guidelines or formulas in North Carolina law to determine how long alimony should last. Instead, the judge decides this depending on the facts of the case. Regardless of the time period initially set by the judge, alimony ends if the dependent spouse remarries or moves in with a new romantic partner, or if one of the parties dies.
By law, judges consider many factors in deciding whether to grant alimony, including how much each party earns and is capable of earning; the age, education, and health of both parties; the length of the marriage; the parties’ property, contributions during the marriage, and needs; marital misconduct; and more. You can view the entire list of factors here.
North Carolina law provides that “illicit sexual behavior” will affect alimony. A dependent spouse who cheated on the supporting spouse before separation loses the right to alimony. A supporting spouse who cheated on the dependent spouse before separation can be forced to pay alimony. If both parties cheated on each other during the marriage, the judge has discretion to decide whether to order alimony. An exception applies if the cheating was “condoned,” or forgiven, by the other spouse.
Yes. Judges also consider other forms of marital misconduct, which include abandonment, cruel treatment, financial misconduct, alcohol or drug abuse, and involuntary separation if one of the spouses is imprisoned.
Beginning on January 1, 2019, and affecting alimony granted through a separation agreement signed after that date or a court order entered after that date, alimony is no longer included in the calculation of a dependent spouse’s gross income.
Enforcement
If the other party does not follow a court order, a Motion for Contempt can be filed, in which you tell the court what part of the order is being ignored and ask the judge to hold that person in contempt of court. If the judge finds that the other party violated the order, the judge will decide the appropriate penalty. Penalties for contempt of court can include a verbal reprimand, a fine, jail time, or requiring the party in contempt to pay the other party’s attorney’s fees. Attorney Lila E. Washington can assist you with this process.
If your separation agreement was included in a court order, such as your divorce decree, you can ask the court to hold the person in contempt of court (see above). If not, you can enforce your separation agreement by suing your former spouse for breach of contract. Attorney Lila E. Washington can assist you with this process.
