Child Custody & Support
In North Carolina, there’s physical custody and legal custody. Legal custody includes the right to make major life decisions about a child including health, education and religion. Physical custody means the right to have the child in your physical care, either all the time or part of the time. Legal and physical custody can be shared by both parents or held solely by one parent. Visitation can be granted to a parent under certain circumstances, this a secondary form of physical custody which includes the right to visit with a child at times set forth in a court order.
A custody order is not required if parents are no longer together however, parents may choose to acquire a custody order when the parents do not agree about the child’s care. If there is no custody order, both legal parents have equal rights to the child.
If a parent is in a situation in which a child is at substantial risk of bodily injury, sexual abuse, or removal from North Carolina for the purpose of avoiding the authority of the North Carolina courts, an emergency custody order can be filed. An emergency custody order is sometimes referred to as an “ex parte order,” which is an immediate, short-term custody order that a judge can grant without a hearing from the other party. If an emergency custody order is granted, a hearing must be scheduled so that both parties have the opportunity to be heard.
All parents are responsible for supporting their children, unless the parent’s rights have been terminated. Child support is when a parent provides money for the purpose of meeting the reasonable needs of the parent’s child for health, education, and maintenance purposes. A person who wants to receive child support can file a civil complaint in district court.
Equitable Distribution
In preparation for a divorce, spouses can ask the court to assist in dividing assets and debts acquired during the marriage. There are different types of property that will be identified during the divorce. There’s marital property, separate property, and divisible property. Marital property is any and all property and debts that were acquired during the marriage. Separate property is any and all property and debts that were acquired prior to the marriage however a spouse may be entitled to an asset based on an active increase in value during the marriage. Divisible property may be divided between the parties depending on the circumstances.
In North Carolina, the law presumes that an equal 50/50 division of martial property is “equitable” or fair however the law provides for certain circumstances that allow an unequal distribution of property. Judges consider many factors in deciding how property is divided. Factors that are considered include but are not limited to:
1. the incomes;
2. property, and debts of both parties;
3. the parties’ ages and health;
4. the length of marriage;
5. the contribution of each party to the other’s earning power; and
6. tax implication.
In North Carolina you are eligible to file for divorce only after being separated for at least a year and a day. 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.
To be considered separated from your spouse, you need to be living separate and apart 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
In North Carolina, 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.
Child custody and support provisions can be provided in the separation agreement as well. 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.
