When someone makes the decision to separate from their spouse, their first step is often to find an attorney. What you might not know is that there are other third-party professionals aside from attorneys that can support you and your family throughout the separation and divorce process. If you are committed to resolving your divorce amicably under a collaborative divorce agreement, you may want to consider improving the collaborative divorce process by engaging one or more of the following third-party professionals.
Upon separation, you might need help figuring out how to separate your marital finances. Perhaps you’ve never been responsible for the bills, never followed a budget, or your spouse has been primarily responsible for investment decisions. A Financial Neutral can step in to evaluate and assist couples in separating the family finances fairly and equitably.
Typically, a Certified Divorce Financial Analyst (CDFA), Certified Public Accountant (CPA), and/or Certified Financial Planner (CFP), a Financial Neutral objectively analyzes the parties’ marital estate (assets and debts), budgets, spousal support scenarios, valuation of pensions or complex compensation plans, pre-marital/separate assets, and assists couples by addressing and brainstorming about any financial issues that arise. A Financial Neutral is usually hired by and works for both spouses. This can be a cost-effective solution for divorcing couples who are high-income earners, have complex compensation plans or retirement plans, and/or have significant separate or pre-marital assets. A Financial Neutral analyzes the marital estate once, rather than spouses paying both individual attorneys to fully analyze the marital estate, which may be seen as duplicative. A Financial Neutral’s hourly rate is usually much lower than an attorney’s hourly rate. Additionally, having a Financial Neutral provides the benefit of getting the spouses on the same page about the actual value of the marital estate and can reduce opportunities for disagreement in settlement.
Maybe you have minor children and you and your spouse do not agree on the best custody schedule for your children, but you are committed to collaborating to determine what is in your children’s best interests. Perhaps you and your spouse need some assistance in addressing the children’s needs as they go through this major life transition with you.
In these circumstances, you can hire a Child Specialist to assist your family. Usually a licensed child psychologist or experienced therapist trained in child development and divorce, a Child Specialist ensures that the parties’ child or children have a voice in the divorce process and have a smooth transition from living in one home to two. A Child Specialist can help a child express his or her feelings in uncomfortable situations, encourage a child to advocate for themselves, and guide and educate parents regarding how to address the day-to-day needs of the children. A Child Specialist serves to educate the parents on developmentally appropriate parenting plans and parent/child relationship dynamics. A Child Specialist does not serve in an individual therapeutic role for the child when serving as a Child Specialist in a divorce due to ethical obligations. A child might be well served by a separate individual therapist who is not the Child Specialist.
Upon separation, there are so many decisions to make during one of the most emotional times of your life. You may be feeling overwhelmed with all the decisions and unfamiliar with the divorce path. To help you navigate these emotions and understand the divorce process, you may hire a Divorce Coach.
Normally a licensed mental health professional like a psychologist or counselor, a Divorce Coach can be hired by one or both parties to help process their feelings related to the divorce and figure out a plan for how to tackle the big decisions required in divorce. Divorce Coaches are experts in the divorce process itself, which is unfamiliar to a newly separated couple. A Divorce Coach helps the collaborative process proceed smoothly by allowing the spouses to communicate their needs and priorities to the Coach. The Coach ensures that the emotional issues relative to the divorce are addressed and worked through during the collaborative process, thereby preventing the spouses from cycling through past hurts or perceptions during the collaborative team meetings. A Divorce Coach can help the spouses envision their lives post-divorce, develop skills for negotiation and emotional regulation throughout the divorce process, and educate them regarding the divorce process. A Divorce Coach operates independently from an individual therapist for one spouse and some spouses might have their own individual therapists in addition to the collaborative Divorce Coach.
If you have already hired an attorney, ask your attorney for suggestions and referrals to third-party professionals who can support you through the collaborative divorce process and help you, your spouse, and your children come out on the other side for the better.
During a divorce, there are many outside parties who might need to get involved in order to assist with the financial dissolution of the marriage, the valuation of assets, emotional support, settlement negotiations, or decision-making surrounding the separation and divorce.
Upon separation, you may feel like you need one person in your corner, outside of family and friends and outside of the messy middle of a divorce, who will listen to you and offer feedback on coping with the flood of emotions that come alongside a divorce. You may also think your children could benefit from the same type of person in their corner. If that’s the case, it is great to seek out a qualified therapist. Therapists can be licensed clinical social workers (LCSWs), licensed professional counselors (LPCs), psychologists (PhDs or PsyDs), licensed mental health counselors (LMHCs), licensed marriage and family therapists (LMFTs), or psychiatrists (MDs or DOs). The letters behind a therapist’s name are not nearly as important as their personality and fit to your (or your child’s) personality. Ask for recommendations from friends, family, or from your attorney for therapists who are trained to support individuals through divorce. You can also utilize an online search method like Psychology Today’s “Find A Therapist” to find one in your local area.
Having an individual therapist allows either the spouse or the child to have a safe place to share thoughts and feelings, be encouraged and empowered with coping skills, and process the grief of divorce.
If your divorce is wrought with arguments and disagreements with your spouse about the smaller details of parenting not included in a custody order and you keep ending up back in court to resolve the disputes about the kids, you might be a family who needs a parenting coordinator.
Parenting coordinators are either trained attorneys or mental health professionals approved and appointed by the court who assist parents in implementing child custody orders. Parenting coordinators are able to be appointed in North Carolina due to North Carolina statutory authority providing for their appointment. In South Carolina custody cases, there is currently no similar statutory authority for the appointment of parenting coordinators. Parenting coordinators are trained to help parents reduce conflict, reach compromises, and improve communication. If, after discussions about a parenting decision with the parenting coordinator, the parents still cannot come to a mutual agreement, a parenting coordinator will weigh each parent’s arguments and make the parenting decision. A parenting coordinator acts as a liaison between the parents, limiting parental interaction, which in turn limits parental conflict.
A parenting coordinator can make decisions for children that are highly important to their lives like what schools they attend, the extracurricular activities in which they may participate, how the child will be disciplined, health care management, or how the child will be transported to and from each parent’s home. These are decisions that should not be delayed by the court system and in typical familial circumstances, parents are able to collaborate together to decide. In high-conflict divorces, however, parents typically cannot collaborate and need the services of a parenting coordinator to avoid constant litigation. If you are in a situation where your co-parent will not make parenting decisions collaboratively, you can ask the court to appoint a parenting coordinator or you and your co-parent can agree to appoint a parenting coordinator to assist you in moving forward in your child custody disagreements.
REAL ESTATE APPRAISERS
Oftentimes, the marital residence is the largest asset that couples have acquired during their marriage. If you want to keep the house in the property settlement, you and your spouse will need to agree on the value of the house so that the spouse not remaining in the home can receive his or her half of the value of the house. If you and your spouse do not agree on the value of the house, you may need to engage the services of a real estate appraiser to determine the fair market value.
A real estate appraiser is a licensed or certified third-party professional who provides an appraisal report that details the value of the home and land and provides a fair market value number based on the report. A real estate appraiser will do an in-person inspection of the house and lot, compare it to other similar homes in the neighborhood, and consider the housing market trends to determine a fair market value for the home. When appraising a property for use in a divorce settlement, it is important to have your appraiser evaluate the value of the property at the date of separation and, if time has passed since the date of separation, the current value of the property. Passive and active increases or decreases in the property value after the date of separation are considered in the overall divorce property settlement.
If you or you and your spouse own a closely held business that is not publicly held and/or easily valued, you will likely need to determine a value in order for the business to be considered in the divorce property settlement. Businesses that are incorporated during a marriage are marital property and can be divided equally upon divorce unless you and your spouse agree otherwise. A business is made up of tangible assets like bank accounts, equipment, buildings, and inventory and intangible assets like goodwill, trademarks, patents, and other intellectual property. If you and your spouse agree on the value of the business and how to divide it, you can avoid the following step. If you do not agree on the value of the business and the value of the business needs to be considered in the divorce property settlement, you may need to hire a business valuator to establish the value of the business.
Business valuators can be Certified Business Appraisers, business valuation analysts, business valuation specialists, or Certified Public Accountants. Business valuators commonly use the fair market value standard, or the market approach, to determine the fair market value of the business. In a divorce settlement, the parties can use the business value to determine how you and your spouse will split the business.
If you and your spouse are generally cordial and want to resolve your divorce outside of court, utilizing a mediator might be a great option for you. It can be difficult to sit down and come to an agreement in a one-on-one conversation with your spouse because of the emotions that surface. A mediator can facilitate the conversation between you and your spouse, keeping it professional and focused, so you and your spouse can come to an agreement about your divorce settlement without the extra cost and headache of going to court.
A mediator is a neutral third party who reviews and helps resolve the issues in a divorce settlement as equitably as possible. Depending on how many issues are outstanding upon the mediation date, mediation can last as little as a few hours, although a mediation session typically lasts for one full day (about 8 hours). A lawyer’s job is to advise his or her individual client during mediation, whereas the mediator’s job is to facilitate negotiations between the spouses and help the spouses move toward compromise. If you and your spouse are amicable, you can agree to mediation on your own, with or without attorneys participating in the process. In North Carolina, a mediator cannot draft the final agreement between the spouses, and you would have to take your list of agreed-upon terms to an attorney to draft into an agreement. In South Carolina, a mediator is permitted to draft the final agreement between the spouses, which is then offered to the court for approval in a final hearing.
If you and your spouse are not able to come to an agreement on your own or with a third-party mediator’s facilitation, but you do not want to subject your personal family and financial matters to a public proceeding in the courtroom, you can choose to utilize an arbitrator. An arbitrator is a neutral third party who acts as a private judge providing a binding decision and order that the spouses must follow. You and your spouse get to choose the arbitrator, the arbitrator’s decision is binding (generally) and cannot be appealed, and you can resolve your marital issues as soon as you can get onto an arbitrator’s schedule without waiting for the court’s backlog. In North Carolina, the Family Law Arbitration Act governs the arbitration proceedings. In North Carolina, spouses can agree to arbitrate any issue that arises out of a marriage, except for the divorce itself, during or after marriage. A couple can agree to submit marital issues to arbitration within a postnuptial agreement or a separation agreement. You can also agree to submit any issue arising out of a marriage, except for child custody, child support, and the divorce itself within a prenuptial agreement prior to marriage.
In South Carolina, the South Carolina Family Law Arbitration Act governs the arbitration proceedings. South Carolina allows for arbitration of all issues arising from a separation or divorce except for the divorce itself, adoptions, termination of parental rights, allegations of child abuse/neglect, allegations of spousal abuse, or criminal or civil contempt sanctions.
Please reach out to our office to discuss your options for support and resolution, both emotionally and legally, and we will be happy to guide you toward the best possible scenario for your individual situation.
Equitable Distribution or Apportionment Basics
During a marriage, you acquire property — whether just through the paychecks you receive from your employer or larger acquisitions like purchasing a house or car, starting a business, buying stocks, or investing money into retirement accounts. Additionally, you might acquire debts during your marriage. Both North and South Carolina laws provide for the division and distribution of the marital estate between spouses, including both property and debts. This is called “equitable distribution” in North Carolina and “equitable apportionment” in South Carolina. There is a general presumption in both states that it is fair and equitable to divide all the property and debt acquired during the marriage (the “marital property”) equally (50%/50%) between the spouses.
What is Marital Property?
All assets, debts, personal property, and real property obtained during the marriage are considered marital property and will typically be divided equally between the spouses. Marital property can include pensions, retirement accounts, deferred compensation plans, personal property, and real property, among other assets. In North Carolina, property acquired from the date of marriage until the date of separation is marital property. In South Carolina, property acquired from the date of marriage until the date of filing of marital litigation is marital property.
What is Separate Property?
Any assets, debts, and property obtained prior to marriage or acquired by a spouse by bequest (gift through a will), devise (inherited through a will), descent (if someone dies without a will and you inherit property from them), or gift during the course of the marriage. Separate, or non-marital, property is not subject to equitable distribution or apportionment. Separate property will remain the property of the spouse who brought that property or debt into the marriage or who acquired it during the marriage through one of the methods mentioned hereinabove.
What is Divisible Property?
Divisible property is any increase or decrease in the value of the marital property that occurs between the date of separation and the date of division of the property. For example, any rise or fall in the value of the former marital residence due to external factors like the real estate market that occurs between the date of separation and the date of division of the property is divisible and will be divided between the parties.
Who is responsible for debts accrued during the marriage?
All debts and liabilities accrued during the course of the marriage, including mortgages, credit cards, student loans, marital business debts, and medical debts are considered a part of the marital estate. The debts and liabilities will be split equally (50%/50%) between the spouses in equitable distribution or equitable apportionment, just like the assets. In North Carolina, marital debts are debts acquired from the date of marriage until the date of separation. In South Carolina, marital debts are debts acquired from the date of marriage and before the filing of marital litigation.
How do you determine the appropriate division of assets and debts?
How to classify and divide marital assets and debts is something that is usually agreed to by the spouses in a Separation Agreement. Look at equitable distribution or apportionment as a complex and creative math problem to provide 50% of the marital estate to each spouse without making additional work or costing additional money for the spouses or attorneys. For example, the division of a retirement account sometimes requires a special court order called a Qualified Domestic Relations Order to divide the account. Drafting and submitting a Qualified Domestic Relations Order costs additional money and time, so if there is a way to make both spouses whole (each receiving half of the net marital estate) without dividing up the retirement account, that is preferred.
Lindsey Dasher is licensed in both South Carolina and North Carolina to help you understand your property rights in relation to equitable distribution or apportionment. Contact our office if you have further questions about your property rights upon separation.
You have made the difficult decision to separate from your spouse, you have moved out of the marital residence, and now you are trying to address the important day-to-day implications separation has on your finances. Your spouse, however, is angry or in denial about the separation and refuses to negotiate the terms of a separation agreement or sign a separation agreement. In this situation, there are a few things you can do to try to protect yourself financially until you can start settlement negotiations with your spouse in earnest.
Child Support Basics
Child support is financial support paid by one parent to another in order to cover the reasonable needs of children for their health, education, and maintenance. Both parents share a duty to financially support their children. In North Carolina and South Carolina, the income shares method of calculation combines the parents’ gross income to approximate what the parents might spend on their children if they were living as an intact family unit.
How is Child Support Calculated?
The Child Support Guidelines in both North Carolina and South Carolina determine if and how much child support should be paid. The Child Support Guidelines are loosely based upon how many nights per year a child spends with each parent. If you are an extremely high-income earner above a certain annual gross income, your child support obligation is not strictly dictated by the Child Support Guidelines as your income is above the threshold contemplated by the Child Support Guidelines.
The Child Support Guidelines in North Carolina and South Carolina have three “Worksheets,” which calculate and determine if child support is owed based on the physical custody arrangement for the children.
In North Carolina, “Worksheet A” is used if there is a primary parent with whom the children spend most of their time, “Worksheet B” is used if the parents share custody of the children more equally, and “Worksheet C” is used if different children live primarily with different parents (i.e., Son lives with Mother primarily and Daughter lives with Father primarily).
In South Carolina, “Worksheet A” is used if there is a primary parent with whom the children spend most of their time, “Worksheet C” is used if the parents share custody of the children more equally, and “Worksheet B” is used if different children live primarily with different parents.
You enter the following information into the worksheets to determine if child support is owed:
We have 50/50 custody, does either parent have to pay child support?
If the parents have comparable monthly gross incomes, there may not be a child support obligation required, or it may be so negligible that the parents agree that no child support will be paid. If one parent earns a significantly higher income than the other, then the higher-earning parent will typically have a child support obligation.
My child’s other parent is not paying child support, do I have to let them see the children?
Yes. A parent’s custodial right to see their children is not based on whether the parent is paying regular child support. You may not withhold parenting time with the children from a parent who is not paying child support.
My spouse isn’t letting me see my children, can I stop making child support payments?
No, you cannot stop making child support payments if your spouse will not allow you to see your children. Failure to pay child support could result in you being held in contempt of court, facing legal action for breach of contract, or having your wages garnished, among other unpleasant outcomes.
When does child support end?
When your child turns 18 and graduates from high school or your child becomes an emancipated minor. You can agree to financially support your child beyond age 18 and high school graduation within a Separation Agreement or Consent Order, but you are not typically legally obligated to do so in the absence of an agreement to do so.
Can my child support payment be modified?
Yes, child support orders can be modified if there has been a change in circumstances. For example, if one parent gets a new job with an increased salary, one child develops extraordinary medical needs, or a parent is laid off from their job, all of these situations could constitute a substantial change in financial circumstances that would warrant modification of a child support order.
If you have questions about paying or receiving child support, please reach out to our firm and we would be happy to assist you.
What is a Separation Agreement?
A Separation Agreement is a legally binding contract between two spouses who are living separate and apart or who plan to separate immediately after executing the Separation Agreement. The purpose of a Separation Agreement is to address and fully resolve all of the existing marital legal issues prior to divorce. A Separation Agreement is not mandatory, but it is a very useful tool to disentangle your joint finances, distribute your property, assets, and debts, and define your legal obligations post-separation. We generally recommend our clients enter into a Separation Agreement during the course of their separation.
Do I need to have a Separation Agreement to be legally separated?
No, the only thing you need to be “legally” separated is for one spouse to move out of the marital residence, with at least one spouse having the intention for separation to be permanent. Staying in separate bedrooms under the same roof is not considered a separation.
What can be included in a Separation Agreement?
A Separation Agreement may address the following issues: Property Settlement, Spousal Support/Alimony (or waiver of the same), Child Support, and Child Custody. Property Settlement, or the division of the marital estate, details and distributes all of the assets and debts acquired during the marriage, which can include:
One question we often get from clients is if the Separation Agreement can include an obligation for the other parent to help pay for a child’s college education. There is no law that absolutely requires a parent to pay for college expenses. In a Separation Agreement or a College Expenses Agreement, however, you and your spouse may choose to agree to pay for a child’s college expenses. Be sure to seek independent legal advice before entering into a Separation Agreement.
Why do I need a Separation Agreement?
The main reasons are fourfold:
Do I need an attorney to draft a Separation Agreement?
Yes, it is best for both you and your spouse to have your own independent legal representation to draft, review, and advise each of you individually before the Separation Agreement is executed.
How do I make sure that my Separation Agreement contract is upheld?
Both parties should have their own separate attorneys to review the Separation Agreement prior to signing and receive independent legal advice for their individual situations. Independent legal representation prevents one spouse from reneging on the contract and saying he or she did not understand the contents of the contract when he or she signed it.
Each party must attest that they have disclosed all marital assets, liabilities, and income, which allows the parties to enter into the Separation Agreement knowing that the entirety of the marital estate is addressed. When both parties have independent counsel, their attorneys can assist with the full financial disclosure to ensure the contract will be upheld.
Both parties must sign the Agreement and their signatures must be notarized.
How soon can I get divorced?
If you are filing for a no-fault divorce, you can file for divorce one year and one day after your date of separation. If filing for a fault-based divorce in South Carolina, you may be able to file for divorce earlier. Signing a Separation Agreement does not change the waiting period for no-fault divorce, but does give you the peace of mind that the complicated logistics of the division of your marital estate have been addressed prior to filing for divorce.
If you choose to enter into a Separation Agreement, you have control of the outcome of your division of marital assets, custody, and child support, when so much feels out of your control during separation and divorce.
What is a Prenuptial Agreement?
A prenuptial agreement is a contract between two prospective spouses made in contemplation of marriage and which becomes effective upon marriage, which dictates the rights and obligations of the spouses during the marriage and in the event of divorce or death of one of the spouses. Prenuptial agreements must be reduced to writing and signed by both parties. There must be a full financial disclosure between the prospective spouses prior to entering the agreement. A prenuptial agreement can be modified after marriage, so long as the modification is in writing and signed by both spouses under oath.
When should you consider a prenuptial agreement?
A prenuptial agreement can be beneficial to all prospective spouses to avoid the expense and conflict that may arise if a marriage ends. A prenuptial agreement circumvents subjecting much of your marital estate to division by the court by defining what the other spouse will receive upon divorce or death. By discussing a prenuptial agreement prior to marriage, prospective spouses open the lines of communication about difficult subjects that many people avoid like finances, assets, debt, death, divorce, and life insurance. By promoting honesty and transparency in marriage, a prenuptial agreement can help individuals avoid the problems which often lead to divorce and promote marital harmony knowing that each spouse is fully aware of the financial implications of the marriage union.
Prenuptial agreements can be especially helpful in the following situations:
What can be included in a prenuptial agreement?
Typically, prenuptial agreements are used to define the property rights, legal rights, and obligations of prospective spouses if they get divorced.
In a typical prenuptial agreement, the spouses agreed upon the following:
What cannot be included in a prenuptial agreement?
In North Carolina and South Carolina, premarital agreements cannot waive child support or pre-determine an amount for child support obligation, and premarital agreements cannot pre-determine child custody.
If your prenuptial agreement leaves your spouse without any means of support, and upon divorce, he or she must apply for public assistance, the waiver of support provisions of your prenuptial agreement would likely be deemed unconscionable and therefore unenforceable.
What is important in order for the prenuptial agreement to be upheld in the future?
The terms must be fair and reasonable.
Full financial disclosure: In both South Carolina and North Carolina, each spouse must make a full financial disclosure of their individual assets, debts, and incomes prior to entering into the prenuptial agreement.
Valuation of assets: Assets like a business might need to be valued by an independent business valuator before including the asset in the prenuptial agreement to ensure the business is valued properly for the full financial disclosure.
Independent legal counsel: The best way to ensure your prenuptial agreement will be upheld by a court is for each prospective spouse to have independent counsel and receive independent legal advice regarding the prenuptial agreement prior to signing the agreement.
Time between the execution of the agreement and the upcoming wedding: You and your prospective spouse want to have time to discuss all the financial implications of marriage and all of the details of a prenuptial agreement prior to entering into it. If you ever find that you must enforce your prenuptial agreement, this will also help prevent the other party from arguing that the agreement was signed under duress or coercion because it was executed the day before the wedding when the deposits for the wedding venue and caterer were non-refundable. It is best to have an ample amount of time to review the Prenuptial Agreement draft, ask your attorney questions, and not be rushed to execute the agreement prior to your wedding date.
Please contact our office if you are considering a prenuptial agreement. We would be happy to assist you.
Can I date during my separation?
In North Carolina: Yes, you can begin dating after you are separated from your spouse. You must wait a year and a day after separation to file for divorce and some people choose to begin dating again in that time period. There is nothing unlawful about dating someone new after separation, as long as you are living separate and apart under a different roof from your spouse and you intend the separation to be permanent. However, it is wise to wait for a little while after your separation to begin dating again. It is important to give yourself time to process the divorce and loss of your marriage relationship and avoid the negative effects a new dating partner might have on your property settlement negotiations and child custody arrangement with your spouse. In North Carolina, if your spouse has made allegations of adultery or marital misconduct, it is best not to date until after your divorce is final. Your spouse (and a judge if your case ended up in court) might view moving in with a new dating partner soon after separation as supporting evidence that the adultery alleged actually occurred.
In South Carolina: Generally, no, in South Carolina, you should not date while you are separated. By dating someone other than your spouse, you run the risk of being accused of having a sexual relationship with someone other than your spouse (even if you are not). South Carolina has a black-and-white view of what constitutes adultery; even if you are “separated” in South Carolina, you are still legally married, and having a sexual relationship with someone who is not your spouse is considered adultery. In South Carolina, adultery can adversely affect alimony rights and claims, property settlement rights and claims, and occasionally child custody.
Can I introduce my new partner to my children?
Oftentimes in child custody agreements, there will be a clause that requires you to date a new partner for a certain time period (for example, 3-6 months) before even introducing the partner to your children. Your parenting agreement might also prohibit you from having a new partner stay overnight when the children are with you. If you agreed to those terms in a Separation Agreement or Consent Order for Child Custody, you need to abide by them.
If you leave your marriage and immediately begin living with someone new, your children (and your spouse) will likely be hurt and confused. It will likely have negative consequences on your relationship with your children and on the potential outcome of a child custody agreement with your spouse, if there isn’t one in place.
Why should you wait to date?
Psychologists compare the loss of a marriage relationship as akin to the loss of a loved one through death. People often grieve the loss of a marriage relationship in the same way, by going through the five stages of grief (denial, anger, bargaining, depression, and acceptance). In our law practice, we often see the spouse who has chosen to leave the marriage is further along in the grief cycle, sometimes all the way to the “acceptance” stage whereas the other spouse may be in the “denial” or “anger” stage. If you immediately start dating and your spouse is aware, your settlement negotiations could be derailed by the emotional impact on your spouse. We recommend avoiding jumping into a new relationship; it can preserve peace between you and your spouse which may enable you to work out the terms of your separation amicably.
Who will get the kids?
An agreement between parents is always preferable to going to court and having a judge determine your custody arrangement. In an agreement, you and your spouse maintain control over exactly what your custody arrangement looks like and can consider any factors that affect your children’s best interests (like each of the parents’ work schedules, schooling arrangements, extracurricular activities, locations of each of the parents’ homes, the children’s ages and wishes, and so forth). Until there is a custody agreement between the parents, each parent has equal rights to custodial time with the children of the marriage.
When can my child choose the parent with whom they wish to reside?
There is no set age when children get to “choose” their custodial parent. The focus in determining a child custody agreement is what is in the best interest of the child. An older child or teenager’s wishes should be given considerable weight when determining a child custody arrangement with your spouse or the other parent. Teenagers who have their own lives including jobs and extracurricular activities and are able to drive are unlikely to follow a child custody arrangement with which they disagree. Forcing a teen to follow a custody arrangement with which they disagree is likely to cause more harm than good in your relationship with the child. A younger child’s wishes should be considered, but generally should not be determinative. Children often tell both parents they want to live with them. This is typically because children often wish they could have their “old life” back, living with both parents like they used to when their parents were together, and also because children want to please their parents, particularly in times of perceived stress and anxiety.
Is there a custodial preference for mothers over fathers?
No, there is not a custodial preference for mothers over fathers in North or South Carolina. Until a judge orders otherwise, or the parents agree otherwise, two married parents who are separating have equal rights to custody of their children. We have seen that children benefit from strong relationships with both of their parents. An experienced family law attorney can provide ample guidance to parents questioning what schedule might be in the best interests of their children, as there are many variations of parenting time schedules. The best schedule is the one that works well for your own family.
If parents share custody, does anyone pay child support?
It depends. The Child Support Guidelines in both North Carolina and South Carolina determine if and how much child support should be paid. The child support obligations are loosely based upon how many nights per year a child spends with each parent. In North Carolina, for example, child support for shared custody is determined by using the Child Support Guidelines “Worksheet B.” If parents share custody of the children equally, you enter in the following information on Worksheet B to determine if child support is owed:
Can I move?
Yes, you are legally able to move wherever you would like. If you have children, however, you may not have the legal right to bring them with you when you move. If there is no custody order or agreement in place, each parent has equal legal rights to the children. If you are separated and want to move the children out-of-state or far away from the other parent, you must inform the other parent and get their approval to take the kids with you. If the other parent does not agree and you move with the children anyway, the other parent could file for an emergency, expedited, or temporary order in court which could force you to bring the children back to their home state. If you move with the children and do not inform the other parent of the children’s whereabouts, the legal consequences could be dire. Courts take a parent’s constitutional right to parent his or her children very seriously and moving without informing the other parent is not likely to provide you with the outcome you desire in your custody case.
In most circumstances, it is best for children to have access to and a meaningful relationship with both of their parents. Moving children far away from one of their parents can have major legal and emotional consequences for you and for the children. Consult with an attorney for more information and guidance on your specific custody situation, as we understand these situations are nuanced and complicated.
My spouse cheated on me/I cheated on my spouse, how will that affect my case?
If you engage in a sexual relationship with someone who is not your spouse prior to your date of divorce, that is considered adultery in both North and South Carolina.
If you engage in a sexual relationship with someone who is not your spouse prior to separation (in North Carolina) or the signing of a final settlement agreement or date of divorce (in South Carolina), that act of adultery could result in significant legal and financial ramifications.
If you are the dependent spouse seeking alimony, but the supporting spouse has evidence you committed adultery, you will be barred from receiving alimony. On the other hand, if you are the supporting spouse, you committed adultery, and your spouse has evidence of the adultery, you will likely be required to pay alimony.
My spouse is moving in with his or her new partner (or I want to move in with mine); how does that affect my case?
To prove “cohabitation” in North Carolina, the supporting spouse must show that a dependent spouse is living with someone else in a romantic relationship that provides economic benefits similar to those that are provided in a marriage relationship.
“Cohabitation” in South Carolina is defined as when the supporting spouse can prove that the dependent spouse has resided with another person in a romantic relationship for more than 90 consecutive days.
If you are seeking to collect spousal support as a dependent spouse, but then move in with a new dating partner, you will likely not be eligible to receive spousal support. The reasoning behind this rule is that your former spouse should not have to provide financial support for you when you are living with another adult who can theoretically provide the same type of support. If you are currently receiving spousal support as a dependent spouse, but then begin cohabitating with your dating partner, spousal support will typically terminate.
If you are the supporting spouse and find out that your former spouse who receives spousal support/alimony has begun cohabitating, you can request that alimony be terminated.