FAQ’s in Family Law

What is an action for absolute divorce?

Historically, the law required a showing of “fault” in order to obtain a divorce. Overtime, the law changed to recognize no-fault divorce actions, including North Carolina. An absolute divorce can be obtained in one of two ways: (1) a showing of incurable insanity; or (2) separation for more than one year with at least one party having the intent to remain separate and apart permanently.

What are the different causes of action that can arise in the context of an absolute divorce?

There are several claims that can arise in an absolute divorce. Possible claims can include: child custody, child support, equitable distribution, post separation support, alimony, and visitation rights. Typically, when one of these claims arises in a divorce action, the action is then classified as a contested divorce. On the other hand, an uncontested divorce is one where the parties have agreed on all the potential issues, or related claims. Likewise, uncontested divorces can usually be settled outside of court, are quicker, and less expensive.

How long does an absolute divorce take?

There are two ways to obtain an absolute divorce: (1) a showing of incurable insanity; or (2) separation for one year. The most common way to obtain an absolute divorce is by separation for one year. After the one year, one can file a complaint for divorce. If the divorce is uncontested then the process is relatively easy. Generally, once the opposing party has been served, they have thirty (30) days to answer the complaint. After the thirty (30) days has expired, additional documents are filed and the case is scheduled for final disposition. Contested divorce actions that proceed to litigation can take much longer, as the parties are relying on the court to dispose of the pending claims. With contested divorces it is best to seek out a lawyer to help you through this difficult process.

On the other hand, to obtain an absolute divorce by incurable insanity there must be: (1) a three year period of no co-habitation; (2) proof that the condition is incurable; (3) two doctors must testify that the person was, and still is, incurably insane; and (4) one of the doctors has to work at a NC 4-year medical school.

When does child support end?

In North Carolina, child support ends once the child reaches the age of eighteen (18) or graduates from high school, whichever is the later of the two. This means if the child is still in high school after reaching the age of eighteen (18), the child support obligation continues as long as the child is making satisfactory process towards graduating, up to the age of twenty (20). There are a few exceptions to this general rule. Child support can terminate earlier than eighteen (18) if the child becomes emancipated. Once the child has been emancipated, the law assumes he/she is able to live independently and support himself/herself. Emancipation also occurs when a child is married before he/she reaches the age of eighteen (18).

How much does a family law case cost?

It depends on the circumstances of your case. Attorneys typically require a consultation fee, a retainer, and bill at an hourly rate. Generally, there are filing fees to be paid to the court and additional court costs. Some other factors that will affect the cost of the case are whether the case will proceed to litigation or will be able to settle, the amount of discovery that is needed, and if another attorney is involved, just to name a few.

What are the benefits of settling v. going to court?

The first benefit of settling outside of court is that it is typically less expensive than lengthy litigation. Preparing for a court hearing can be time consuming, stressful, and expensive. In settlement, if the parties are able to come up with a mutually acceptable agreement, it will save both parties time and money. However, proceeding with litigation in a divorce action, especially with children involved, can be difficult. If you are facing a potentially contested divorce action the best option is to find a lawyer who can help walk you through the process and explain your options.

If I only have one question, do I really need a consultation?

Even if you only have one question, it is always a good idea to seek the advice of an attorney. Furthermore, sometimes the initial question could have a complicated answer. During the consultation, the attorney will discuss your specific legal situation with you and what it may cost to achieve your goals. At Rech Law, P.C., our consultations typically last about an hour.

What is the difference between physical custody and legal custody?

In child custody matters, there are two kinds of custody: legal and physical. Legal custody is the power to make major decisions for your child regarding education, healthcare, and religion. Physical custody is who actually has custody of the child. In other words, who is caring for the child? Parties can have sole or joint custody of the child(ren). For example, if the parents have joint legal custody of the child(ren) then the parents must confer with each other and agree when making the major decisions. If a parent has sole legal custody of the child he/she has the ultimate decision making authority. In North Carolina, the court is required to consider joint custody if one party requests it.

I have a custody order in place, but I am thinking about moving to another state with my child. Can I do that?

When there is a child custody order in place the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) prevails. The UCCJEA relates exclusively to child custody between people of different states. The purpose of the UCCJEA is to avoid jurisdictional battles and to encourage cooperation among states. North Carolina has adopted the UCCJEA under Ch. 50A of North Carolina General Statutes (NCGS). The courts permission is required when North Carolina courts have initial jurisdiction over a child custody case and there is a party who wishes to relocate out of state. North Carolina still has continuing and exclusive jurisdiction over the case unless the courts from the two different states agree otherwise. Also, parties must show a substantial change in circumstances to first modify/change a permanent custody order. While North Carolina has not codified any specific statutes in relation to a child’s relocation, in the landmark Ramirez-Barker court case, the Court considers the following factors:

  1. the advantages of the relocation in terms of its capacity to improve the life of the child;
  2. the motives of the custodial parent in seeking the move;
  3. the likelihood that the custodial parent will comply with visitation orders when he or she is no longer subject to the jurisdiction of the North Carolina courts;
  4. the integrity of the noncustodial parent in resisting the relocation; and the likelihood that a realistic visitation schedule can be arranged that will preserve and foster the parental relationship with the noncustodial parent.