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Can You Handle Your Own North Carolina Divorce?

Allen & Spence - FAQI frequently get asked by clients, potential clients, and people just looking for North Carolina divorce information,  whether they can handle their own divorce.  The legal answer is always yes you can… any person can represent their own interest in court without a lawyer.  All the way from small claims cases to death penalty defense, you can be your own lawyer.

Everyone has the right to stand up in their own case and be his or her own lawyer.  In legal lingo someone who represents him or herself in court is pro se, meaning he or she is “for one’s own behalf.”  What it really means in family court in North Carolina is that you are going it alone and you will be expected to follow the same rules, procedures, and laws that attorneys know to follow.

The real question, and the important question, is whether it is a good idea to handle your own divorce?  No, it is not.

In the usual family law case in North Carolina there are about five separate sub-parts in a normal divorce case: divorce, child custody, child support, spousal support, and equitable distribution.  Each of these is, in reality, a separate legal case.  For example, spouses can be divorced after one year of separation, but the decree of divorce will not resolve equitable distribution, child support, child custody, etc.

A decree of divorce is only a document that ends the marriage.  Other matters are usually settled by a separation agreement when parties can agree and by the district court judge when parties can not agree.  There are often tax and real property issues that need to be addressed and evaluated.  A mistake can be very costly.

In addition to the complex legal issues and the pro se party’s lack of training and knowledge in rules, procedure, and the law, it is extra-ordinarily  difficult for a pro se person to be objective.   Objective and reasoned guidance is one of the most under-appreciated benefits of having a lawyer.  It is hard to make good decisions when you are in the center of a storm.

If you decide to represent yourself to save money you must evaluate the cost of not having an attorney. Before you decide to  represent yourself, consult with an attorney and make informed decisions about the risks.

 

 

Filed Under: Divorce Tagged With: , , , , , , ,

Temporary Child Support in Wake County, North Carolina

temporary child support in North CarolinaTemporary child support is child support ordered pending a final determination of child support.   Under Wake County local rules, temporary child support hearings are limited in duration to one hour of court time.

Temporary child support may be requested in a complaint, counterclaim or in a motion filed by a party.  It is not unusual to see a temporary child support request coupled with a request for past or retroactive child support.  The purpose of temporary child support is to get an amount of support in place pending final resolution of the case. Temporary child support is, in most cases, bases upon application os the North Carolina child support guidelines.   In some situations, the guidelines do not apply and the court will determine temporary child support based upon the incomes and expenses of the parties.  These are often presented in court in the form of financial affidavits.

The Wake County Local Rules have specific requirements to temporary child  support cases tried in Raleigh:

              6.3  Temporary Child Support Hearings. A hearing shall be set and a temporary child support order entered pursuant to N.C.G.S. § 50-32. Only upon the request of an attorney or party shall the assigned FCCC schedule a temporary child support hearing in accordance with these Rules.

  1. (a)  Length of Hearing. Temporary child support hearings shall be limited to 1 hour. Each party will have up to thirty minutes to present his or her case, including direct and cross-examination, opening statements and closing arguments. With written notice to the opposing party at least seven (7) days prior to the scheduled hearing date, parties may request from the Court additional time, which the assigned Judge may allow in his or her discretion.
  2. (b)  Use of Affidavits. Evidence in temporary child support hearings may be by affidavits. An affidavit is a sworn statement of fact, written down, signed, and witnessed by a taker of oaths such as a notary public. Parties wishing to use affirmative affidavits from the parties, accountants, private investigators or other third parties must deliver the affidavits (excluding attorney’s fee affidavits) to the other party by any means reasonably calculated to ensure receipt no later than ten (10) days prior to the scheduled hearing. Rebuttal affidavits, i.e., affidavits that are a direct response to the opposing party’s affirmative affidavits, shall be delivered to the other party by any means reasonably calculated to ensure receipt no later than five (5) days before the scheduled hearing. The Court will not consider affidavits which are not served on the opposing party in accordance with these Rules.
  3. (c)  Temporary Order. The temporary child support order shall be non-prejudicial to both parties. In Guidelines cases, a completed Child Support Worksheet (AOC-CV-627, 628, or 629) shall be attached to the temporary order which is filed with the Clerk of Court.
  4. (d)  Dismissal of Temporary Child Support Claim. If a party asserts a claim for temporary child support, he or she must schedule the claim for hearing so that it is heard within sixty (60) days of the filing of the claim. If the claim is not timely scheduled for hearing, the claim may be involuntarily dismissed without prejudice for failure to comply with these Rules.

 

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Raleigh divorce lawyerScott Allen handles child support, temporary child support and modification of child support in Wake County, North Carolina has over seventeen years of experience.  

If you have questions or need assistance call him at (919) 863-4183 or email at sallen@allenspence.com.  

 

 

 

 

 

Filed Under: Child Support Tagged With: , , , , , , , , , , , , , , , , , ,

The Child Custody Evaluation in Wake County, North Carolina

Raleigh Child Custody Evaluation

Raleigh Child Custody and Wake County Child Custody Evaluations

A child custody evaluation is a valuable tool in contested Raleigh child custody cases in North Carolina.  In this article I will explore some of the frequent questions I get about the custody evaluation over my years of practice in the Wake County family court in Raleigh, NC and other counties around North Carolina.

What is a child custody evaluation?  

Generally speaking, a child custody evaluation is a forensic examination of the children and parents by a qualified person.  The evaluation report will present the information gathered, an interpretation of the information, and make recommendations for the family.  The recommendations may include, for example, custodial schedule, suggestions about communication, and the need, if any, for individual and family counseling.

What is the purpose of the child custody evaluation in North Carolina courts?

As with any expert witness, the purpose of an expert is to assist the district court judge hearing the child custody case in making a fair and fully informed custody decision.  A child custody evaluation, no matter what the recommendations are, is not a replacement for the final judgment of the court.  The trial court may elect to use the recommendations; however, there is no requirement for the judge to do so.  The district court judge also has the choice to place little credibility in the evaluator’s opinion.

When can a child custody evaluation help?

I believe they can help in any Raleigh child custody or NC custody case that is being litigated because when the parents can’t agree and a judge must decide, the kind of information provided by the report almost always helps the court make a decision.

When can a child custody evaluation hurt?

On an individual basis, it would not be wise for a party who has psychological problems and parenting issues to request a child custody evaluation because these problems are likely to be highlighted in the experts’ report.  Of course, this sets up the tension between a parent’s individual desires for a particular custodial arrangement and what is truly in the best interest of the child.

A forensic child custody evaluation should be considered in any high-conflict case and in cases where there are suspicions of substance abuse, sexual abuse, or other similar factual situations.  The American Psychological Association has published guidelines that are useful.

What are the other downsides to a custody evaluation? 

They are expensive and they add several months to the custody litigation process.  In Raleigh child custody cases an expert may cost between $4,000 and $12,000.  the cost can vary by location because different experts frequently serve different areas of the sate.   There is a range that experts in the field charge and the number of children and complexity of the case all go into the wide range of possible costs.   The other obvious issue is how long the process takes.  The expert not only has to do interviews of the parents and children, but performs psychological testing, reviews of relevant documents, and interviews collateral witnesses.

 

  

Filed Under: Child Custody, Raleigh Tagged With: , , , , , , , ,

Emergency Child Custody in North Carolina

Child Custody Best InterestThe law in North Carolina is that a parent may seek emergency custody in limited circumstances when there are extreme safety concerns or there is a risk that a parent will move or has moved the child from North Carolina to avoid this state’s jurisdiction.  In North Carolina child custody cases, emergency temporary orders may be entered upon the request of one party without the other party being present in court.  This is called an “ex parte” hearing and in this type of hearing only one side tells the court its version of events.   The ex parte order, if entered by the court, will be reviewed with notice and an opportunity for the other party to be present within ten days.

Reasons for emergency custody are varied, for example, an ex parte custody order may be entered if a child is abandoned.  Another example where an ex parte order is appropriate is if the child has been a victim of physical abuse by a parent.

Many parents think that emergency custody can be sought in every situation; however, that is not the case.  District court judges generally look very closely at applications for ex parte emergency custody and will refuse to enter an order unless the facts clearly rise to the level requiring the court to enter an order.

Judges look at ex parte applications for emergency custody and supporting affidavits closely because of the danger of abuse of the process when only one side gets to tell his or her story and because the relief that is being asked for usually involves a child being taken away from the other parent, frequently with the involvement of the police.

If an ex parte emergency custody order is entered there will be a return hearing where both sides should be prepared to present evidence to the court.  In this hearing the plaintiff (the parent seeking emergency custody) will be asking for an order to remain in place.  The defendant will be arguing and presenting evidence that there is no emergency.   Frequently courts will use the return hearing to fashion a temporary order in an effort to add stability for the children and to establish a framework for the parents’ interaction.

If you think your case has facts that justify a request for emergency custody, you should contact an attorney to assist you with evaluating the situation and get advice on how best to proceed.  If the facts do not support emergency custody, then it is always best not to file the emergency request and proceed with a custody request and set temporary child custody for hearing.

 

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Raleigh divorce lawyerScott Allen handles emergency custody claims, child custody, and temporary custody hearings and has over eighteen years of experience.  

If you have questions or need assistance call him at (919) 863-4183 or email at sallen@allenspence.com.  

Filed Under: Child Custody Tagged With: , , , , , , , , , , , , , , , , , , ,

Postseparation Support in North Carolina

postseparation support Postseparation support is a ration of the 1995 statutory amendments that overhauled the alimony and temporary alimony law in North Carolina.  Postseparation support is temporary alimony.   It is designed as a stop-gap measure to help dependent spouses get support after separation and until final alimony is awarded or denied.

Fault usually plays little to no role in the postseparation support hearing.  Frequently the postseparation support award is based primarily on financial affidavits that are filled out by the parties prior to the hearing.    In Wake County, North Carolina, postseparation support hearings are time-limited by the court.

 

§ 50‑16.2A.  Postseparation support.

(a)        In an action brought pursuant to Chapter 50 of the General Statutes, either party may move for postseparation support. The verified pleading, verified motion, or affidavit of the moving party shall set forth the factual basis for the relief requested.

(b)        In ordering postseparation support, the court shall base its award on the financial needs of the parties, considering the parties’ accustomed standard of living, the present employment income and other recurring earnings of each party from any source, their income‑earning abilities, the separate and marital debt service obligations, those expenses reasonably necessary to support each of the parties, and each party’s respective legal obligations to support any other persons.

(c)        Except when subsection (d) of this section applies, a dependent spouse is entitled to an award of postseparation support if, based on consideration of the factors specified in subsection (b) of this section, the court finds that the resources of the dependent spouse are not adequate to meet his or her reasonable needs and the supporting spouse has the ability to pay.

(d)       At a hearing on postseparation support, the judge shall consider marital misconduct by the dependent spouse occurring prior to or on the date of separation in deciding whether to award postseparation support and in deciding the amount of postseparation support. When the judge considers these acts by the dependent spouse, the judge shall also consider any marital misconduct by the supporting spouse in deciding whether to award postseparation support and in deciding the amount of postseparation support.

(e)        Nothing herein shall prevent a court from considering incidents of post date‑of‑separation marital misconduct as corroborating evidence supporting other evidence that marital misconduct occurred during the marriage and prior to date of separation. (1995, c. 319, s. 2.)

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Raleigh divorce lawyer Scott Allen handles postseparation support, alimony, and all other types of family law matters.  

If you have questions or need assistance call him at (919) 863-4183 or email at sallen@allenspence.com.  

Filed Under: Alimony, Family Law Library Tagged With: , , , , , , , , , , , , , , , , , , , ,

Health Insurance and Medical Support – NCGS 50-13.11

The law in North Carolina on child support presumes that parents have a financial responsibility towards their children.   This such an important issue to the states and the federal government, that child support agencies have been established, including in North Carolina, that seek to establish parental child support obligations and enforce those obligations once established.  A frequent component of child support is health insurance.

North Carolina law allows the district court judge in a child support case to order health insurance coverage when  ”health insurance is available at a reasonable cost.”  The court may also require  parent to maintain dental insurance coverage for a child.

The statute provides:

§ 50‑13.11.  Orders and agreements regarding medical support and health insurance coverage for minor children.

(a)        The court may order a parent of a minor child or other responsible party to provide medical support for the child, or the parties may enter into a written agreement regarding medical support for the child. An order or agreement for medical support for the child may require one or both parties to pay the medical, hospital, dental, or other health care related expenses.

(a1)      The court shall order the parent of a minor child or other responsible party to maintain health insurance for the benefit of the child when health insurance is available at a reasonable cost. If health insurance is not presently available at a reasonable cost, the court shall order the parent of a minor child or other responsible party to maintain health insurance for the benefit of the child when health insurance becomes available at a reasonable cost. As used in this subsection, health insurance is considered reasonable in cost if it is employment related or other group health insurance, regardless of service delivery mechanism. The court may require one or both parties to maintain dental insurance.

(b)        The party ordered or under agreement to provide health insurance shall provide written notice of any change in the applicable insurance coverage to the other party.

(c)        The employer or insurer of the party required to provide health, hospital, and dental insurance shall release to the other party, upon written request, any information on a minor child’s insurance coverage that the employer or insurer may release to the party required to provide health, hospital, and dental insurance.

(d)       When a court order or agreement for health insurance is in effect, the signature of either party shall be valid authorization to the insurer to process an insurance claim on behalf of a minor child.

(e)        If the party who is required to provide health insurance fails to maintain the insurance coverage for the minor child, the party shall be liable for any health, hospital, or dental expenses incurred from the date of the court order or agreement that would have been covered by insurance if it had been in force.

(f)        When a noncustodial parent ordered to provide health insurance changes employment and health insurance coverage is available through the new employer, the obligee shall notify the new employer of the noncustodial parent’s obligation to provide health insurance for the child. Upon receipt of notice from the obligee, the new employer shall enroll the child in the employer’s health insurance plan.

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Raleigh divorce lawyer Scott Allen handles child support has over seventeen years of experience.  

If you have questions or need assistance call him at (919) 863-4183 or email at sallen@allenspence.com.  

Filed Under: Family Law Library Tagged With: , , , , , , , , , , , , , , , , , , , , , ,

How Child Support is Enforced. NCGS 50-13.9

§ 50‑13.9.  Procedure to insure payment of child support.

(a)        Upon its own motion or upon motion of either party, the court may order at any time that support payments be made to the State Child Support Collection and Disbursement Unit for remittance to the party entitled to receive the payments. For child support orders initially entered on or after January 1, 1994, the immediate income withholding provisions of G.S. 110‑136.5(c1) apply.

(b)        After entry of an order by the court under subsection (a) of this section, the State Child Support Collection and Disbursement Unit shall transmit child support payments that are made to it to the custodial parent or other party entitled to receive them, unless a court order requires otherwise.

(b1)      In a IV‑D case:

(1)        The designated child support enforcement agency shall have the sole responsibility and authority for monitoring the obligor’s compliance with all child support orders in the case and for initiating any enforcement procedures that it considers appropriate.

(2)        The clerk of court shall maintain all official records in the case.

(3)        The designated child support enforcement agency shall maintain any other records needed to monitor the obligor’s compliance with or to enforce the child support orders in the case, including records showing the amount of each payment of child support received from or on behalf of the obligor, along with the dates on which each payment was received. In any action establishing, enforcing, or modifying a child support order, the payment records maintained by the designated child support agency shall be admissible evidence, and the court shall permit the designated representative to authenticate those records.

(b2)      In a non‑IV‑D case:

(1)        Repealed by Session Laws 2005, ch. 389, s. 1.

(2)        The clerk of court shall maintain all official records and all case data concerning child support matters previously enforced by the clerk of court.

(3)        Repealed by Session Laws 2005, ch. 389, s. 1.

(c)        In a IV‑D case, the parties affected by the order shall inform the designated child support enforcement agency of any change of address or other condition that may affect the administration of the order. The court may provide in the order that a party failing to inform the court or, as appropriate, the designated child support enforcement agency, of a change of address within a reasonable period of time may be held in civil contempt.

(d)       Upon affidavit of an obligee, the clerk or a district court judge may order the obligor to appear and show cause why the obligor should not be subjected to income withholding or adjudged in contempt of court, or both. The order shall require the obligor to appear and show cause why the obligor should not be subjected to income withholding or adjudged in contempt of court, or both, and shall order the obligor to bring to the hearing records and information relating to the obligor’s employment, the obligor’s licensing privileges, and the amount and sources of the obligor’s disposable income. The order shall state:

(1)        That the obligor is under a court order to provide child support, the name of each child for whose benefit support is due, and information sufficient to identify the order;

(2)        That the obligor is delinquent and the amount of overdue support;

(2a)      That the court may order the revocation of some or all of the obligor’s licensing privileges if the obligor is delinquent in an amount equal to the support due for one month;

(3)        That the court may order income withholding if the obligor is delinquent in an amount equal to the support due for one month;

(4)        That income withholding, if implemented, will apply to the obligor’s current payors and all subsequent payors and will be continued until terminated pursuant to G.S. 110‑136.10;

(5)        That failure to bring to the hearing records and information relating to his employment and the amount and sources of his disposable income will be grounds for contempt;

(6)        That if income withholding is not an available or appropriate remedy, the court may determine whether the obligor is in contempt or whether any other enforcement remedy is appropriate.

The order may be signed by the clerk or a district court judge, and shall be served on the obligor pursuant to G.S. 1A‑1, Rule 4, Rules of Civil Procedure. On motion of the person to whom support is owed in a non‑IV‑D case, with the approval of the district court judge, if the district court judge finds it is in the best interest of the child, no order shall be issued.

(e)        Repealed by Session Laws 2005, ch. 389, s. 1.

(f)        Repealed by Session Laws 2005, ch. 389, s. 1.

(g)        Nothing in this section shall preclude the independent initiation by a party of proceedings for civil contempt or for income withholding. ( 1983, c. 677, s. 1; 1985 (Reg. Sess., 1986), c. 949, ss. 3‑6; 1989, c. 479; 1993, c. 517, s. 6; c. 553, s. 67.1; 1995, c. 444, s. 1; c. 538, s. 1.2; 1997‑443, s. 11A.118(a); 1999‑293, ss. 11‑14; 2001‑237, s. 7; 2005‑389, s. 1; 2006‑264, s. 97.)

 

 

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Raleigh divorce lawyer Scott Allen handles child support, modification of custody, child custody, and temporary custody hearings and has over seventeen years of experience.  

If you have questions or need assistance call him at (919) 863-4183 or email at sallen@allenspence.com.  

 

Filed Under: Family Law Library Tagged With: , , , , , , , , , , , , , , , , , , , ,

Child Support in NC – NCGS § 50‑13.4. Action for support of minor child.

§ 50‑13.4.  Action for support of minor child.

(a)        Any parent, or any person, agency, organization or institution having custody of a minor child, or bringing an action or proceeding for the custody of such child, or a minor child by his guardian may institute an action for the support of such child as hereinafter provided.

(b)        In the absence of pleading and proof that the circumstances otherwise warrant, the father and mother shall be primarily liable for the support of a minor child. In the absence of pleading and proof that the circumstances otherwise warrant, parents of a minor, unemancipated child who is the custodial or noncustodial parent of a child shall share this primary liability for their grandchild’s support with the minor parent, the court determining the proper share, until the minor parent reaches the age of 18 or becomes emancipated. If both the parents of the child requiring support were unemancipated minors at the time of the child’s conception, the parents of both minor parents share primary liability for their grandchild’s support until both minor parents reach the age of 18 or become emancipated. If only one parent of the child requiring support was an unemancipated minor at the time of the child’s conception, the parents of both parents are liable for any arrearages in child support owed by the adult or emancipated parent until the other parent reaches the age of 18 or becomes emancipated. In the absence of pleading and proof that the circumstances otherwise warrant, any other person, agency, organization or institution standing in loco parentis shall be secondarily liable for such support. Such other circumstances may include, but shall not be limited to, the relative ability of all the above‑mentioned parties to provide support or the inability of one or more of them to provide support, and the needs and estate of the child. The judge may enter an order requiring any one or more of the above‑mentioned parties to provide for the support of the child as may be appropriate in the particular case, and if appropriate the court may authorize the application of any separate estate of the child to his support. However, the judge may not order support to be paid by a person who is not the child’s parent or an agency, organization or institution standing in loco parentis absent evidence and a finding that such person, agency, organization or institution has voluntarily assumed the obligation of support in writing. The preceding sentence shall not be construed to prevent any court from ordering the support of a child by an agency of the State or county which agency may be responsible under law for such support.

The judge may order responsible parents in a IV‑D establishment case to perform a job search, if the responsible parent is not incapacitated. This includes IV‑D cases in which the responsible parent is a noncustodial mother or a noncustodial father whose affidavit of parentage has been filed with the court or when paternity is not at issue for the child. The court may further order the responsible parent to participate in work activities, as defined in 42 U.S.C. § 607, as the court deems appropriate.

(c)        Payments ordered for the support of a minor child shall be in such amount as to meet the reasonable needs of the child for health, education, and maintenance, having due regard to the estates, earnings, conditions, accustomed standard of living of the child and the parties, the child care and homemaker contributions of each party, and other facts of the particular case. Payments ordered for the support of a minor child shall be on a monthly basis, due and payable on the first day of each month. The requirement that orders be established on a monthly basis does not affect the availability of garnishment of disposable earnings based on an obligor’s pay period.

The court shall determine the amount of child support payments by applying the presumptive guidelines established pursuant to subsection (c1) of this section. However, upon request of any party, the Court shall hear evidence, and from the evidence, find the facts relating to the reasonable needs of the child for support and the relative ability of each parent to provide support. If, after considering the evidence, the Court finds by the greater weight of the evidence that the application of the guidelines would not meet or would exceed the reasonable needs of the child considering the relative ability of each parent to provide support or would be otherwise unjust or inappropriate the Court may vary from the guidelines. If the court orders an amount other than the amount determined by application of the presumptive guidelines, the court shall make findings of fact as to the criteria that justify varying from the guidelines and the basis for the amount ordered.

Payments ordered for the support of a child shall terminate when the child reaches the age of 18 except:

(1)        If the child is otherwise emancipated, payments shall terminate at that time;

(2)        If the child is still in primary or secondary school when the child reaches age 18, support payments shall continue until the child graduates, otherwise ceases to attend school on a regular basis, fails to make satisfactory academic progress towards graduation, or reaches age 20, whichever comes first, unless the court in its discretion orders that payments cease at age 18 or prior to high school graduation.

In the case of graduation, or attaining age 20, payments shall terminate without order by the court, subject to the right of the party receiving support to show, upon motion and with notice to the opposing party, that the child has not graduated or attained the age of 20.

If an arrearage for child support or fees due exists at the time that a child support obligation terminates, payments shall continue in the same total amount that was due under the terms of the previous court order or income withholding in effect at the time of the support obligation. The total amount of these payments is to be applied to the arrearage until all arrearages and fees are satisfied or until further order of the court.

(c1)      Effective July 1, 1990, the Conference of Chief District Judges shall prescribe uniform statewide presumptive guidelines for the computation of child support obligations of each parent as provided in Chapter 50 or elsewhere in the General Statutes and shall develop criteria for determining when, in a particular case, application of the guidelines would be unjust or inappropriate. Prior to May 1, 1990 these guidelines and criteria shall be reported to the General Assembly by the Administrative Office of the Courts by delivering copies to the President Pro Tempore of the Senate and the Speaker of the House of Representatives. The purpose of the guidelines and criteria shall be to ensure that payments ordered for the support of a minor child are in such amount as to meet the reasonable needs of the child for health, education, and maintenance, having due regard to the estates, earnings, conditions, accustomed standard of living of the child and the parties, the child care and homemaker contributions of each party, and other facts of the particular case. The guidelines shall include a procedure for setting child support, if any, in a joint or shared custody arrangement which shall reflect the other statutory requirements herein.

Periodically, but at least once every four years, the Conference of Chief District Judges shall review the guidelines to determine whether their application results in appropriate child support award amounts. The Conference may modify the guidelines accordingly. The Conference shall give the Department of Health and Human Services, the Administrative Office of the Courts, and the general public an opportunity to provide the Conference with information relevant to the development and review of the guidelines. Any modifications of the guidelines or criteria shall be reported to the General Assembly by the Administrative Office of the Courts before they become effective by delivering copies to the President Pro Tempore of the Senate and the Speaker of the House of Representatives. The guidelines, when adopted or modified, shall be provided to the Department of Health and Human Services and the Administrative Office of the Courts, which shall disseminate them to the public through local IV‑D offices, clerks of court, and the media.

Until July 1, 1990, the advisory guidelines adopted by the Conference of Chief District Judges pursuant to this subsection as formerly written shall operate as presumptive guidelines and the factors adopted by the Conference of Chief District Judges pursuant to this subsection as formerly written shall constitute criteria for varying from the amount of support determined by the guidelines.

(d)       In non‑IV‑D cases, payments for the support of a minor child shall be ordered to be paid to the person having custody of the child or any other proper person, agency, organization or institution, or to the State Child Support Collection and Disbursement Unit, for the benefit of the child. In IV‑D cases, payments for the support of a minor child shall be ordered to be paid to the State Child Support Collection and Disbursement Unit for the benefit of the child.

(d1)     For child support orders initially entered on or after January 1, 1994, the immediate income withholding provisions of G.S. 110‑136.5(c1) shall apply.

(e)        Payment for the support of a minor child shall be paid by lump sum payment, periodic payments, or by transfer of title or possession of personal property of any interest therein, or a security interest in or possession of real property, as the court may order. The court may order the transfer of title to real property solely owned by the obligor in payment of arrearages of child support so long as the net value of the interest in the property being transferred does not exceed the amount of the arrearage being satisfied. In every case in which payment for the support of a minor child is ordered and alimony or postseparation support is also ordered, the order shall separately state and identify each allowance.

(e1)      In IV‑D cases, the order for child support shall provide that the clerk shall transfer the case to another jurisdiction in this State if the IV‑D agency requests the transfer on the basis that the obligor, the custodian of the child, and the child do not reside in the jurisdiction in which the order was issued. The IV‑D agency shall provide notice of the transfer to the obligor by delivery of written notice in accordance with the notice requirements of Chapter 1A‑1, Rule 5(b) of the Rules of Civil Procedure. The clerk shall transfer the case to the jurisdiction requested by the IV‑D agency, which shall be a jurisdiction in which the obligor, the custodian of the child, or the child resides. Nothing in this subsection shall be construed to prevent a party from contesting the transfer.

(f)        Remedies for enforcement of support of minor children shall be available as herein provided.

(1)        The court may require the person ordered to make payments for the support of a minor child to secure the same by means of a bond, mortgage or deed of trust, or any other means ordinarily used to secure an obligation to pay money or transfer property, or by requiring the execution of an assignment of wages, salary or other income due or to become due.

(2)        If the court requires the transfer of real or personal property or an interest therein as provided in subsection (e) as a part of an order for payment of support for a minor child, or for the securing thereof, the court may also enter an order which shall transfer title as provided in G.S. 1A‑1, Rule 70 and G.S. 1‑228.

(3)        The remedy of arrest and bail, as provided in Article 34 of Chapter 1 of the General Statutes, shall be available in actions for child‑support payments as in other cases.

(4)        The remedies of attachment and garnishment, as provided in Article 35 of Chapter 1 of the General Statutes, shall be available in an action for child‑support payments as in other cases, and for such purposes the child or person bringing an action for child support shall be deemed a creditor of the defendant. Additionally, in accordance with the provisions of G.S. 110‑136, a continuing wage garnishment proceeding for wages due or to become due may be instituted by motion in the original child support proceeding or by independent action through the filing of a petition.

(5)        The remedy of injunction, as provided in Article 37 of Chapter 1 of the General Statutes and G.S. 1A‑1, Rule 65, shall be available in actions for child support as in other cases.

(6)        Receivers, as provided in Article 38 of Chapter 1 of the General Statutes, may be appointed in action for child support as in other cases.

(7)        A minor child or other person for whose benefit an order for the payment of child support has been entered shall be a creditor within the meaning of Article 3A of Chapter 39 of the General Statutes pertaining to fraudulent conveyances.

(8)        Except as provided in Article 15 of Chapter 44 of the General Statutes, a judgment for child support shall not be a lien against real property unless the judgment expressly so provides, sets out the amount of the lien in a sum certain, and adequately describes the real property affected; but past due periodic payments may by motion in the cause or by a separate action be reduced to judgment which shall be a lien as other judgments and may include provisions for periodic payments.

(9)        An order for the periodic payments of child support or a child support judgment that provides for periodic payments is enforceable by proceedings for civil contempt, and disobedience may be punished by proceedings for criminal contempt, as provided in Chapter 5A of the General Statutes.

Notwithstanding the provisions of G.S. 1‑294, an order for the payment of child support which has been appealed to the appellate division is enforceable in the trial court by proceedings for civil contempt during the pendency of the appeal. Upon motion of an aggrieved party, the court of the appellate division in which the appeal is pending may stay any order for civil contempt entered for child support until the appeal is decided, if justice requires.

(10)      The remedies provided by Chapter 1 of the General Statutes, Article 28, Execution; Article 29B, Execution Sales; and Article 31, Supplemental Proceedings, shall be available for the enforcement of judgments for child support as in other cases, but amounts so payable shall not constitute a debt as to which property is exempt from execution as provided in Article 16 of Chapter 1C of the General Statutes.

(11)      The specific enumeration of remedies in this section shall not constitute a bar to remedies otherwise available.

(g)        An individual who brings an action or motion in the cause for the support of a minor child, and the individual who defends the action, shall provide to the clerk of the court in which the action is brought or the order is issued, the individual’s social security number.

(h)        Child support orders initially entered or modified on and after October 1, 1998, shall contain the name of each of the parties, the date of birth of each party, and the court docket number. The Administrative Office of the Courts shall transmit to the Department of Health and Human Services, Child Support Enforcement Program, on a timely basis, the information required to be included on orders under this subsection and the social security number of each party as required under subsection (g) of this section.  (1967, c. 1153, s. 2; 1969, c. 895, s. 17; 1975, c. 814; 1977, c. 711, s. 26; 1979, c. 386, s. 10; 1981, c. 472; c. 613, ss. 1, 3; 1983, c. 54; c. 530, s. 1; 1985, c. 689, s. 17; 1985 (Reg. Sess., 1986), c. 1016; 1989, c. 529, ss. 1, 2; 1989 (Reg. Sess., 1990), c. 1067, s. 2; 1993, c. 335, s. 1; c. 517, s. 5; 1995, c. 319, s. 9; c. 518, s. 1; 1997‑433, ss. 2.1(a), 2.2, 4.4, 7.1; 1997‑443, ss. 11A.118(a), 11A.122; 1998‑17, s. 1; 1998‑176, s. 1; 1999‑293, ss. 3, 4; 1999‑456, s. 13; 2001‑237, s. 1; 2003‑288, s. 1; 2008‑12, s. 1.)

 

____________________

Raleigh divorce attorney  Scott Allen handles child support, modification of child support, custody, child custody, and temporary custody hearings and has over seventeen years of experience.  

If you have questions or need assistance call him at (919) 863-4183 or email at sallen@allenspence.com.  

Filed Under: Family Law Library Tagged With: , , , , , , , , , , , , , , , , , , , , , , ,

Child Custody Entitlement – NCGS 50-13.2

§ 50‑13.2. Who entitled to custody; terms of custody; visitation rights of grandparents; taking child out of State.
(a) An order for custody of a minor child entered pursuant to this section shall award the custody of such child to such person, agency, organization or institution as will best promote the interest and welfare of the child. In making the determination, the court shall consider all relevant factors including acts of domestic violence between the parties, the safety of the child, and the safety of either party from domestic violence by the other party and shall make findings accordingly. An order for custody must include findings of fact which support the determination of what is in the best interest of the child. Between the mother and father, whether natural or adoptive, no presumption shall apply as to who will better promote the interest and welfare of the child. Joint custody to the parents shall be considered upon the request of either parent.
(b) An order for custody of a minor child may grant joint custody to the parents, exclusive custody to one person, agency, organization, or institution, or grant custody to two or more persons, agencies, organizations, or institutions. Any order for custody shall include such terms, including visitation, as will best promote the interest and welfare of the child. If the court finds that domestic violence has occurred, the court shall enter such orders that best protect the children and party who were the victims of domestic violence, in accordance with the provisions of G.S. 50B‑3(a1)(1), (2), and (3). If a party is absent or relocates with or without the children because of an act of domestic violence, the absence or relocation shall not be a factor that weighs against the party in determining custody or visitation. Absent an order of the court to the contrary, each parent shall have equal access to the records of the minor child involving the health, education, and welfare of the child.
(b1) An order for custody of a minor child may provide visitation rights for any grandparent of the child as the court, in its discretion, deems appropriate. As used in this subsection, “grandparent” includes a biological grandparent of a child adopted by a stepparent or a relative of the child where a substantial relationship exists between the grandparent and the child. Under no circumstances shall a biological grandparent of a child adopted by adoptive parents, neither of whom is related to the child and where parental rights of both biological parents have been terminated, be entitled to visitation rights.
(c) An order for custody of a minor child may provide for such child to be taken outside of the State, but if the order contemplates the return of the child to this State, the judge may require the person, agency, organization or institution having custody out of this State to give bond or other security conditioned upon the return of the child to this State in accordance with the order of the court.
(d) If, within a reasonable time, one parent fails to consent to adoption pursuant to Chapter 48 of the General Statutes or parental rights have not been terminated, the consent of the other consenting parent shall not be effective in an action for custody of the child.
(e) An order for custody of a minor child may provide for visitation rights by electronic communication. In granting visitation by electronic communication, the court shall consider the following:
(1) Whether electronic communication is in the best interest of the minor child.
(2) Whether equipment to communicate by electronic means is available, accessible, and affordable to the parents of the minor child.
(3) Any other factor the court deems appropriate in determining whether to grant visitation by electronic communication.
The court may set guidelines for electronic communication, including the hours in which the communication may be made, the allocation of costs between the parents in implementing electronic communication with the child, and the furnishing of access information between parents necessary to facilitate electronic communication. Electronic communication with a minor child may be used to supplement visitation with the child. Electronic communication may not be used as a replacement or substitution for custody or visitation. The amount of time electronic communication is used shall not be a factor in calculating child support or be used to justify or support relocation by the custodial parent out of the immediate area or the State. Electronic communication between the minor child and the parent may be subject to supervision as ordered by the court. As used in this subsection, “electronic communication” means contact, other than face‑to‑face contact, facilitated by electronic means, such as by telephone, electronic mail, instant messaging, video teleconferencing, wired or wireless technologies by Internet, or other medium of communication. (1957, c. 545; 1967, c. 1153, s. 2; 1977, c. 501, s. 2; 1979, c. 967; 1981, c. 735, ss. 1, 2; 1985, c. 575, s. 3; 1987, c. 541, s. 2; c. 776; 1995 (Reg. Sess., 1996), c. 591, s. 5; 2004‑186, s. 17.1; 2009‑314, s. 1.)

 

 

____________________

Raleigh divorce lawyer Scott Allen handles modification of custody, child custody, and temporary custody hearings and has over seventeen years of experience.  

If you have questions or need assistance call him at (919) 863-4183 or email at sallen@allenspence.com.  

Filed Under: Family Law Library Tagged With: , , , , ,

Taxes and Your Divorce – North Carolina Child Support

Unlike alimony, child support is not taxable to the recipient and it is not deductible by the person paying it.

There are, however, many tax issues related to child support that you need to consider whether you have to go to court to resolve child support or if it is settled by agreement.  Here are some common questions I get asked about child support and taxes.

Q: Who gets to claim the child on taxes?

A: The IRS says that the parent who has custody for more than half the year gets to claim a child.

Q: Since I pay child support, shouldn’t I get to claim the child on my taxes?

A: No. The North Carolina child support guideliens are drafted in a way that the amount of child support is calculated on the assumption that the child support recipient claims the child on his or her taxes.

Q: If I pay child support, can I ask the court to allow me to claim a child on my taxes?

A: Yes.  In some circumstances the district court judge in North Carolina may allow the payor of child support to claim the child on his or her taxes.

Q:  Does the recipient of child support have to show it as income on her taxes?

A:  No.

Q: If I pay child support, may I deduct it?

A: No.

Q: What if my spouse or ex-spouse and I both claim the children on our separate tax returns?

A: One or both of you will have a problem with the IRS.

Q: What if we have an agreement that allows one parent to claim the children?

A: That is acceptable, but the spouse giving up the right to claim a child may need to sign an IRS form.  The form is IRS form number 8332.

 

____________________

Raleigh divorce attorney  Scott Allen handles modification of custody, child custody,child support, and temporary custody hearings and has over seventeen years of experience.  

If you have questions or need assistance call him at (919) 863-4183 or email at sallen@allenspence.com.  

Filed Under: Child Support Tagged With: , , , , , , , , , , , , , , , , , ,

Taxes and Your Divorce – Alimony

As the year draws to a close one issue that many separated and divorcing couples have not considered is the impact of the tax laws on their divorce.  Taxes absorb a significant amount of income and impact cash flow and wealth.  If you are paying or receiving alimony there are important rules about how they impact your taxes.

Amounts of spousal suport paid under divorce or alimony order or written separation agreements entered into between you and your spouse or former spouse will be considered alimony for Federal tax purposes only if:

  • You do not file a joint tax return with your spouse or former spouse;
  • Payments are made in cash, checks or money orders;
  • The payment is received by your spouse or former spouse
  • The document under which it is paid  does not say that the payment is not alimony;
  • You and your spouse are not members of the same household when you make the payment;
  • You have no liability to make the payment after the death of your spouse or former spouse, and
  • Your payment is not child support or for a property settlement.

Alimony does not include:

  • Payments for child support
  • Property settlements
  • Payments to keep up the payer’s property, or
  • Use of the payer’s property

The payor of alimony may deduct from income on his taxes the amount of alimony or separate maintenance paid.  The recipient must include in income alimony or separate maintenance she received.

As indicated above, child support is never deductible. Also, noncash property settlements, whether in a lump sum or installments, are not alimony. Voluntary payments are also not considered alimony for tax purposes.

 

 

Filed Under: Alimony Tagged With: , , , , , , , , , , , , , , , ,

Should I Settle My Raleigh Custody Case?

Child Custody in NC

Raleigh Child Custody Attorney Scott Allen on Settling Child Custody

Child custody decisions are often the most difficult part of any divorce.  I get asked this question all the time:  ”Scott, should I settle my child custody case?” I always say yes, settle child custody  if you can.

Why you should try to settle your Raleigh child custody case.

It is best for child custody cases to settle.  Whether you have a North Carolina child custody case or you are in another state, take my word for it:  you really should want to settle your child custody case.

I would not wish a child custody case on my worst enemy (I don’t think I have any enemies, but if I had one I wouldn’t wish it on him or her).  Why?  Because child custody cases stink.  They mess up children, they mess up relationships, and they cost a lot of emotional and financial resources.

Focus on the Best Interest of the Child.

Parents should look beyond their personal feelings and look at what their children need and work together as parents to help their children.  The “best interest” standard is the same concept the district court judge considers in a child custody case.  If both parents focused on their children’s needs rather than the parents wants or desires, the children would always be better off.

Invariably, I say these things and I hear the following: “Scott, I would settle if he/she would just be reasonable” or “what he/she is suggesting for custody is not good for the kids.”  I try to then point out that the other parent is likely saying the same thing to his/her lawyer about you.  That usually does not go over well, but I encourage my clients to see the world from the other parent’s point of view.

Can every Raleigh child custody case be settled?

I try to get parents to see the value in working out their custody issues.  Nonetheless, they sometimes don’t or won’t settle.  However, not every case can be settled because sometimes the parents’ views are simply irreconcilable, and a judge must make a decision.  Additionally, some parents engage in parental alienation. Some clients do listen to my advice and try to settle but their spouses or ex-spouses are not listening to their attorneys.  Sometimes a parent has a substance abuse problem or some psychological problem that makes settlement impossible.

Who should I call if I need help with a Raleigh child custody case?

As I write elsewhere, you should talk to at least two different Raleigh divorce lawyers before you decide upon who to hire.  If you want to talk to me about your case and possible representation, call me at (919) 863-4183 or email at sallen@allenspence.com.

 

Filed Under: Raleigh Tagged With: , , , , , , , , , , , , , , , , , , , ,

Can a Child Decide Which Parent Gets Custody in NC?

Testimony of a Child in NCI often get asked what impact a child’s wishes has on the court’s determination of custody.  In North Carolina, your child does not get the final say.

The law is that the court may use what a child tells him or her as evidence, but the final say is the judge’s.  North Carolina law does not set out an age when a person may be a witness in court.  The legal test is whether the minor is a competent witness and that means they have to be able and old enough to know what it means to tell the truth and can express them selves in an understandable way.

Unless both parties agree, the child must testify from the witness stand.  This is a very stressful event for the child, the parents, lawyers and judge.  Usually, if a child is going to be brought in, everyone wants the impact on the child to be reduced as much as possible.   Usually there is an agreement that the district court judge will talk to the judge in her office.

Regardless of what a child has to say about their preferences, a judge may decide in favor of the other parent.  This is because sometimes the district court judge with find that what the son or daughter is saying has been “bought” by a parent with promises.   Sometimes, the court might find that the child simply does not know what is best for herself.  For example, the parties’ son might prefer to live with the parent who has fewer rules, more flexibility  with curfews,  or  who does not make them do chores.  The maturity of the minor is a factor for the judge to evaluate.

In conclusion, deciding where the child should live is about what is in the best interest of the child and not about what the child says he or she wants.

____________________

Raleigh child custody attrorney Scott Allen handles modification of custody, child custody, and temporary custody hearings and has over seventeen years of experience.  

If you have questions or need assistance call him at (919) 863-4183 or email at sallen@allenspence.com.  

 

 

Filed Under: Child Custody Tagged With: , , , , , , , , ,

Scott Allen Approved as Parent Coordinator

 

Raleigh, November 24, 2011.

Raleigh divorce lawyer Scott Allen has been approved as a parent coordinator by the chief district court judge of the 10th Judicial District in Wake County.

When asked about his role as a parent coordinator, Mr. Allen explains: “I am excited for the opportunity to help families in this way. A district court judge in North Carolina may appoint a parenting coordinator in certain child custody cases.  If asked to help in a case, my role is to reduce conflict between the parents for the welfare of the children in high conflict child custody cases.”

Mr. Allen further explained that a parent coordinator does not replace the district court judge in the assigned family court case but is only there to help in a difficult child custody case.   The role of the parent coordinator is as defined by the judge in the high conflict custody case and, depending on the case, Mr. Allen says he may be called on to  “identify disputed issues, reduce misunderstandings, explore compromise, clarify priorities, develop methods of collaboration in parenting, and ensure compliance with the court’s custody order. In other words, I will be there to help promote the best interest of the children.”

Under North Carolina law, a high-conflict custody case is one where the district court judge finds that the parties demonstrate an ongoing pattern of excessive litigation, anger and distrust, verbal abuse, physical aggression or threats of physical aggression, communication issues regarding the children or other conditions that the court determines warrant the appointment of a parenting coordinator.  These high-conflict cases are some of the most difficult cases for the courts to deal with because the high level of parental animosity and the impact on the children.

Mr. Allen says he looks forward working with families as a parent coordinator.

____________________

Raleigh divorce lawyer Scott Allen is a designated parent coordinator in Wake County.  He also handles modification of custody, child custody, and temporary custody hearings and has over seventeen years of experience.  If you have questions or need assistance call him at (919) 863-4183 or email at sallen@allenspence.com.


		

		
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New Firm Announced:  Allen and Spence
 
		
				

			
 


Raleigh, November 24, 2011


Attorneys Scott Allen and Amanda Spence announce the formation of a new Raleigh divorce law and elder law firm, Allen & Spence.  The new office is located in The Atrium at 2501 Blue Ridge Road in Raleigh.


While Allen & Spence is a new firm, the partners have each practiced law in Wake County for over seventeen years.


Scott Allen is a trusted and experienced litigator, mediator, and appellate lawyer.  He works with individuals and families in matters of child custody, child support, equitable distribution, alimony, divorce, domestic violence, and alienation of affection and criminal conversation cases.


Amanda Spence is an experienced and trusted elder law attorney.  She works with families and individuals in matters related to elder law, trusts, nursing home issues, Medicaid, wills and estates.


Scott Allen and Amanda Spence are both graduates of the University of North Carolina School of Law.  Mr. Allen received his undergraduate degree, with honors, from North Carolina State University and Ms. Spence received her degree, with honors, from the University of North Carolina at Chapel Hill.


According to Mr. Allen: “The population in the here is getting older and recent U.S. Census data indicates that North Carolina couples marry and divorce at slightly higher rates than people in most other states.  It’s well known that divorce, death, and long-term illness of a family member are among the most stressful events in life. We are caring, experienced attorneys and are able to guide our clients through life’s trying times.”


The Raleigh family law firm of Allen & Spence, located on 2501 Blue Ridge Road, Suite 250, in Raleigh, N.C., concentrates on family law and elder law, including divorce, child custody, child support, visitation, alimony, post-separation support, equitable distribution, Medicaid, wills, trusts and estates. Mr. Allen is also a trained mediator and is a parent coordinator.


 


For more information, contact the firm by calling (919) 863-4183 or visit www.allenspence.com.

		

		
Filed Under: Press Releases  Tagged With: , , , , , , , , , , , , , , , , , , , ,  

	

		


				
Temporary Custody in North Carolina
 
		
				

			


Temporary child custody is an important component of the trial court’s powers to protect children in North Carolina.


G.S. § 50-13.5(c)(2) and (d)(2) give the district court jurisdiction to enter temporary custody and support orders for minor children.  G.S. § 50-13.5(d)(2) provides that temporary orders may be entered “[i]f the circumstances of the case render it appropriate.”  That statute gives the judge a great deal of discretion about when and hot to have a temporary child custody hearing and what the order will say.


 


In Wake County, North Carolina, if a complaint or motion for child custody is filed and there is a request for temporary child custody, a hearing for temporary child custody is automatically scheduled.  That temporary child custody hearing is scheduled for two hours at the courthouse in Raleigh and each party is given one hour to call witnesses, present evidence, and make their case for the temporary award.


A temporary child custody order establishes each party’s right to custody pending the resolution of a claim for permanent custody and establish order for a family that is in a chaotic situation.  The court will often establish both a legal custody arrangement and a physical custody arrangement.   The temporary child custody order is, in many ways, only a stop-gap measure by the court to impose a schedule when the parents cannot agree,


In certain custodial situations a temporary child custody order may be entered ex parte under appropriate circumstances such as when there is a risk or harm or one parent is fleeing the state with a child.  The statute is clear that a temporary order that changes custody or changes the living arrangements of a child cannot be entered ex parte unless the child risks bodily injury, sexual abuse, or removal from the state for purpose of evading the jurisdiction of the court.  You can find more information about emergency custody here.












Unlike the rules about preliminary injunctions, a temporary custody order entered ex parte does not expire automatically after ten days.


The statutes and case-law do not preclude a temporary custody hearing after a motion to modify a permanent custody order has been filed. Also, there appears to be no statutory prohibition against asking the court to modify a temporary order.


Finally, just as in a full hearing on custody, the court may consider a request or make its own motion for the appointment of a parent coordinator.


If you are facing the prospect of a temporary child custody hearing then you should obtain the assistance of an attorney.   The temporary child custody hearing is very important because it establishes legal rights and obligations and is sometime a framework for what the permanent child custody order will look like.


 


 


____________________


Raleigh divorce lawyer Scott Allen handles modification of custody, child custody, and temporary custody hearings and has over eighteen years of experience.  


If you have questions or need assistance call him at (919) 863-4183 or email at sallen@allenspence.com.  









		

		
Filed Under: Child Custody  Tagged With: , , , , , , , , , , , , , , , , , ,  

	

		


				
Custody and Visitation by Skype and Facetime
 
		
				

			






Skype, Apple Facetime and other video-conferencing technologies are being used more and more between parents and their children who are living primarily or temporarily at long distances.  North Carolina law allows the district court judge to order parental visitation via electronic communication in G.S. § 50-13.2(e).


Other states such as New Jersey are adopting laws allowing virtual visitation as well.


“Electronic communication” is defined in the statute as contact, other than face-to-face contact, facilitated by electronic means, such as by telephone, electronic mail, instant messaging, video teleconferencing, wired or wireless technologies by Internet, or other medium of communication.


To grant visitation by electronic communication the North Carolina district court judge must consider:


    

  • Whether electronic communication is in the best interest of the minor child.
    • 

  • Whether equipment to communicate by electronic means is available, accessible, and affordable to the parents of the minor child.
    • 

  • Whether there is any other factor the court deems appropriate in determining whether to grant visitation by electronic communication.
    • 











The statute does not allow electronic communication as a replacement or substitution for custody or visitation.   This an important point, especially for parents who live long distances form their children.  Also, this makes it clear that electronic communications are merely a supplement to face-to-face and in person visitation.


Electronic communication between the child and the parent may be subject to supervision as ordered by the court.  This no different from any other power the district court judge has to set the parameters of custodial time.


Finally, anticipating that the issue would come up in a child support calculation or modification, the general assembly has made it clear that the amount of time electronic communication is used shall not be a factor in calculating child support. Likewise, the amount of electronic communication may not be used to justify or support relocation by the custodial parent out of the immediate area or the State.


__________________


Wake County family law attorney Scott Allen handles custody and child support cases every day and has over seventeen years of experience.  If you have questions or need assistance call him at (919) 863-4183 or email at sallen@allenspence.com.


 


 



		

		
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Modification of Child Custody in North Carolina
 
		
				

			






North Carolina law allows for the modification of a child custody order under certain circumstances.   This article explores the  law and the circumstances allowing the trial court to modify a custody order.


This article assumes that a North Carolina custody order is in place.  A separation agreement that has not been incorporated is not a court order.  A parenting agreement or consent order that has been signed by the parents and the judge is a court order.  An order of a different state that has been registered to allow modification is also the kind of order that can be modified.


Recall that if a judge hears a child custody case where there is no order in place or there is only a temporary order, the legal standard in North Carolina is the best interest of the child.


In a modification proceeding there are actually two legal hurdles before a court may change the order.  G.S. § 50-13.7(a) allows an child custody modification “at any time, upon a motion in the cause and a showing of changed circumstances,” except as otherwise provided in G.S. § 50-13.7A.  (50-13.7A deals with certain situations where a parent is in military service).


The best interest of the child is not considered until there has been a showing of a substantial change affecting the child.    The district court judge must find a substantial change of circumstances before it can change an existing order.
















The party seeking modification has burden of showing changed circumstances. However, after there has been a showing of a substantial change affecting the child, neither party has a burden of proof on the question of best interest.


There is no statutory amount of time that must pass before a motion to modify may be filed as long as the person filing the motion can meet their burden and prove a substantial change of circumstances.


So what kinds of circumstances may the court consider?  It is not possible to make an exhaustive list but the basic rules are:


    

  • The change of circumstances must be substantial;
    • 

  • The district court judge must consider changes that have salutary effects upon the child and those which will have adverse effects upon the child;
    • 

  • Speculative evidence that a substantial change may occur sometime in the future will not support a change in custody.
    • 

  • The evidence must demonstrate a connection between the substantial change in circumstances and the welfare of the child.
    • 



Raleigh family law attorney Scott Allen handles child custody cases every day  and has over seventeen years of experience.  If you have questions or need assistance call him at (919) 863-4183 or email at sallen@allenspence.com.









		

		
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How Can I Modify or Revoke My Premarital or Prenuptial Agreement?
 
		
				

			






I have been asked this question many time over my years of practice:  ”I signed a premarital agreement, got married, and now don’t want it; how can I make it go away?”  The answer provided by G.S. § 52B-6 and case law on the issue is that the premarital agreement act in North Carolina provides that a premarital agreement may be amended or revoked after marriage only by a written agreement signed by the parties.


If you want to get out of your prenuptial agreement you need to sit down with your spouse and talk about it.  If he or she does not agree to change it or make it go away, your only choice is to see if you can get the agreement to be declared invalid.


Also, under certain circumstances a party who does not want to be bound by a premarital agreement can prove that it is unenforceable by showing:  (1) The party did not execute the agreement voluntarily; (2) The agreement was unconscionable when it was executed and, before execution of the agreement, the party:


    

  • Was not provided a fair and reasonable disclosure of the property or financial obligations of the other party;
    • 

  • Did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and
    • 

  • Did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party.
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As you can see, the issue of disclosure in a premarital agreement should get close attention by you and your lawyer.


It is also very important not to “spring” a premarital agreement on your fiancé just before the wedding.  Not only would doing that likely spoil your relationship with your fiancé, it could create an argument about duress.  Also, to protect the integrity of the agreement, you and your fiancé should have different lawyers.


Family law attorney Scott Allen negotiates and drafts premarital agreements and has over seventeen years of experience.  If you have questions or need assistance call him at (919) 863-4183 or email at sallen@allenspence.com.








 

		

		
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Premarital Agreements
 
		
				

			






NC Premarital AgreementNorth Carolina adopted a version of the Uniform Premarital Agreement Act and our version of the act is is applicable to any premarital agreement executed on or after July 1, 1987.


A premarital agreement is a documents signed by parties  in anticipation of marriage that  addressees what will happen in the event of divorce of a spouse or death of a spouse.








Unlike a regular contract, a premarital agreement is enforceable without the exchange of consideration by the parties.  Consideration was a traditional element of contracts under the common law and, in essence, meant that the parties must bargain for and exchange something of value before a valid contract is created.  In family law, North Carolina has abandoned this common law requirement both in premarital agreements and separation agreements.


Although consideration is not required, a valid premarital agreement under the premarital agreement act must have certain qualities:


    

  • A premarital agreement must be in writing and signed by both parties.
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  • A premarital agreement is effective upon marriage and marriage is a prerequisite of an effective premarital agreement.  This means that if the parties do not marry the premarital agreement is not valid.
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  •  Premarital agreements may dispose of their property upon divorce through the provisions of the agreement rather than by equitable distribution.
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  • Premarital agreements under North Carolina law may control rights and obligations in property, whenever and wherever acquired or located.
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  • “Property” is defined as “an interest, present or future, legal or equitable, vested or contingent, in real or personal property, including income and earnings.”
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  • Premarital Agreements may control the right to sell, transfer, buy, use, exchange, abandon, lease, consume, expend, assign, encumber, dispose of, or otherwise manage and control property.
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  • Premarital agreements may bar alimony and postseparation support and attorneys fees under certain circumstances.
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  • Premarital agreements may control the making of a will or trust to carry out the agreement.
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  • Premarital agreements may impact ownership rights in and disposition of the death benefit in a life insurance policy.
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  • A premarital agreement may define which law applies to it.
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  • Finally, a premarital agreement may control “Any other matter, including personal rights and obligations, not in violation of public policy or a criminal statute.”
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Premarital agreements can be attacked under certain circumstances.  Here is an excellent article that deals generally with attacking agreements under the UPAA.




Family law attorney Scott Allen drafts, negotiates, and litigates premarital agreements and has over seventeen years of experience.  If you have questions or need assistance call him at (919) 863-4183 or email at sallen@allenspence.com.

		

		
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