Frequently Asked Family Law Questions
Cabarrus County Divorce And Family Law Attorney
This family law FAQ is only a starting point. Billick Family Law can answer questions about your specific situation. Call us today at 704-490-4054 for help regarding your specific situation.
What Are The Requirements For Getting A Divorce?
In order to get a divorce in North Carolina you must live separate and apart from your spouse for one year. You must actually live in separate residences, not just separate bedrooms. There is no requirement that both spouses want the divorce or that you and your spouse have a formal separation agreement, just that one of you move out with the intention of the separation being permanent.
Can The Spouse Who Moved Out Of The Marital Residence Move Back In After Our Separation?
Once you move out of the martial residence, you likely will not be able to return without the permission of the spouse who continues to live there. If you try to re-enter the house without permission, you can be charged with domestic criminal trespass. If you decide to move out and your income is necessary for paying the monthly marital bills, you will need to continue to contribute until a long-term agreement can be reached, otherwise you may be accused of abandoning your spouse. Speaking about these issues with an attorney prior to separation can save you a lot of time and money down the road.
Does Having Sex With My Spouse During Separation Break The Separation Period?
During your separation, isolated incidents of sexual intercourse with your spouse do not necessarily break the separation period. A court can find that the separation period was broken if there was a voluntary renewal of the husband-wife relationship as shown by a “totality of the circumstances.” If you are certain you want a divorce it is best not to engage in behavior which could lead your spouse or third parties to believe that the marriage is being resumed.
How Long Do I Need To Be Separated From My Spouse Before Filing For Divorce?
Once you have been separated for one year, you (or an attorney on your behalf) must file a complaint for absolute divorce with the clerk of court. The complaint must then be served on your spouse by a sheriff or by certified mail. Your spouse will then have 30 days during which to respond to your complaint if he or she so chooses. Once the 30 days expire, you or your attorney can get a court date to have a judge sign a divorce judgment. Different counties in North Carolina have different procedures for getting your case on a court calendar.
Do I Have To Wait One Year Before Getting Child Or Spousal Support?
You do not have to wait for the one-year separation period to end to file a lawsuit for equitable distribution (property issues), child custody, child support or spousal support.
Is There A Residency Requirement For Getting A Divorce?
You or your spouse must have been a resident of North Carolina for at least six months in order to file a lawsuit here.
Can I Take Back My Maiden Name?
If you would like to resume the use of a maiden name you need to ask to do so in your divorce complaint.
Is There Any Defense To A Divorce Case?
There is no defense to a divorce other than to allege that the one-year separation has not really occurred.
What Should I Know About After My Divorce Is Granted?
If an absolute divorce is granted, the bonds of your marriage are terminated and you are now eligible to remarry. Your ability to ask the court for assistance with distribution of marital property or spousal support issues is terminated unless you had claims for those issues pending prior to the judge signing your divorce judgment. If you have property or support issues, it is advisable to speak with an attorney before beginning the divorce process. Getting a divorce does not cut off your right to have the court assist you with child custody or child support issues. However, getting a divorce cuts off your right to inherit money from your former spouse (and vice versa). However, it is still a good idea to update your will, power of attorney and to designate new beneficiaries on any life insurance or retirement account.
Do I Really Need An Attorney For A Divorce?
You may be able to successfully get yourself divorced without the assistance of an attorney, especially if you do not have any joint property or debt. It is always less expensive to consult with an attorney before your divorce than it is to try to correct errors that are made when you do it yourself.
Can I Get An Annulment?
You may qualify for an annulment if: (1) you or your spouse are physically impotent, (2) you find out your spouse is already married to someone else, (3) you were the victim of fraud or duress, (4) you lacked the capacity to contract at the time of the marriage, or (5) you find out you and your spouse are related (nearer of kin than first cousins). If you believe you meet any of these criteria, you should consult with an attorney. You cannot get an annulment just based on the short length of a marriage.
Does “Fault” Matter?
Yes. Although “fault” is not required for a divorce in North Carolina, it may still play a role in your divorce and separation. There is a fault-based claim entitled Divorce From Bed and Board, which is a judicially ordered separation rather than an actual divorce. Common fault grounds, also called “marital misconduct,” are: illicit sexual behavior, abandonment, malicious turning out of doors, cruel or barbarous treatment endangering the life of the other spouse, indignities rendering the condition of your spouse intolerable and life burdensome, reckless spending or the waste/diversion of assets, excessive use of alcohol or drugs, and willful failure to provide necessary subsistence according to one’s means.
Alleging and proving fault grounds can also bolster your claim for spousal support if you are a dependent spouse or limit your obligation to pay support if you are a supporting spouse.
How Is Child Custody Determined?
Deciding a custodial arrangement for your child is often the most emotional and contentious issue during a separation and divorce. First and foremost you need to focus on the needs of your child. Do NOT put him/her in the middle of your arguments with their other parent. Children are resilient and if you and the other parent can put the child’s needs ahead of your own, he/she will be okay.
Until there is a custody order, both parents have equal rights to their child. In order to file a complaint for custody in North Carolina you must first meet one of the following jurisdictional requirements: (1) North Carolina is the “home state” of your child, meaning the child has lived in North Carolina for at least the last six months; (2) If there is no home state or if the home state has declined to exercise jurisdiction and you and your child are present in, and have a substantial connection with, North Carolina and there is substantial evidence in North Carolina regarding your child’s welfare; or (3) If the child is present in North Carolina and has been abandoned or it is necessary to protect the child due to a threat of mistreatment or abuse. Parents cannot pick up and move to another state just for the purpose of filing for custody.
Will I Need To Participate In Child Custody Mediation?
After a lawsuit is filed, North Carolina requires that you and the other parent participate in child custody mediation. This is an opportunity for you and the other parent to sit down in a neutral location with a mediator and discuss possible custody arrangements. If you are able to agree, the mediator will prepare a parenting agreement for your signature. Once signed by both parents, the parenting agreement will be signed by a judge and become a court order.
Who Decides What Is In My Child’s Best Interests?
If an agreement is not reached at mediation, your case will be scheduled for a custody trial. The judge’s job is to decide what is in your child’s best interest with regard to both legal and physical custody.
What Is The Difference Between Legal And Physical Custody?
Legal custody is the right of the parents to make important decisions for their children, including health care, education and religion. Physical custody is the day-to-day living arrangements. When making a child custody decision, the judge will consider anything he or she thinks is important in determining what arrangement will best promote the interests and welfare of the child.
Do My Children Have A Say In Who They Will Live With?
One factor a judge may consider in determining issues of child custody is the wishes of the child. If the judge determines that your child is of appropriate age and is mature enough to provide the court with helpful information, the child may be allowed to testify in court or to speak with the judge in chambers. A child does not have the right to choose whom he or she wants to live with, but his or her wishes are one of several factors that a judge can take into consideration when making a custody decision.
Are All Aspects Of A Child Custody Order Enforceable?
After the judge hears all of the evidence he or she will put a custody order in place setting forth, among other things, the times the child is to be with each parent. This order is valid and binding unless it is set aside or modified. Once an order is in place you must abide by it or the other party can seek to have you held in contempt. To be found in contempt, a judge must find that you are in willful violation of a valid court order. An active jail sentence is a possible punishment.
Can I Get A Child Custody Order Modified?
Things often arise to make parents unhappy with a custody order. Having an existing custody order modified requires showing the following: First you have to show that since the entry of the existing order there has been a substantial and material change affecting the welfare of the minor child. People often have no problem showing a change has occurred, but fail to present sufficient evidence of how it directly affects the child. If a judge finds that there has been a substantial and material change in circumstances then he or she must determine if, in light of the new circumstances, a change in custody is in the child’s best interest.
Contact Billick Family Law Today
If you have specific questions about family law issues, we encourage you to schedule a consultation with our experienced family law attorney. Our Concord firm serves clients throughout Cabarrus County. To make an appointment, call at 704-490-4054 or use our online contact form.