Divorce Differently |
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Blended families can be a blessing to all involved. There’s more love to go around when a child is loved by biological parent(s) and stepparents. Sometimes a stepparent has truly taken on the role of parent and wants to solidify his or her relationship with the stepchild legally through adoption. Stepparent adoption can be an option in some circumstances. A stepparent adoption can be a viable option if the other biological parent is not involved in the child’s life and either consents or has their parental rights terminated. Below we answer some common questions regarding stepparent adoptions. If you have more questions about your specific situation, please reach out to schedule a consultation.
Can my spouse adopt my child from a previous relationship? Your spouse and the child’s stepparent may be eligible to adopt your child from a prior relationship if:
What do we need from the child’s other biological parent to proceed with a stepparent adoption? The child’s other biological parent must either:
If there is not sufficient evidence to terminate parental rights and the other biological parent will not consent, then the stepparent will not be able to adopt the child. What consents are needed to move forward with a stepparent adoption?
What kind of assessment or home study is required for a stepparent adoption? A Report to the Court may be necessary in certain stepparent adoptions. A Report to the Court is a report or assessment completed by the Department of Social Services or other agency to assist the court in determining if the proposed adoption is in the child’s best interest. In stepparent adoptions, a Report to the Court:
Will the child’s other biological parent still owe child support for the adoptee? If the child is adopted by the stepparent, the child’s other biological parent will not owe any future child support obligation. The child’s other biological parent will remain liable for past-due child support payments unless legally released from that obligation. If you want more information regarding the possibility of stepparent adoption, please reach out to our office to schedule a consultation. Adoption is the creation by law of the relationship of a parent and child between two individuals (N.C.G.S. 48-1-101(2)). North Carolina has specific laws regarding adoptions in the state. We handle certain types of adoption! Reach out and let us know how we can help.
Types of Adoption
Who can adopt? Any adult who is over the age of 18 can adopt another person, except people who are married cannot adopt one another. People who are single can adopt (whether straight or LGBTQ). Married LGBTQ couples can also adopt. Your sexual orientation or gender identity cannot disqualify you from adoption in the state of North Carolina. North Carolina does not permit “second parent adoptions,” when two adults who are not married jointly adopt a child. Whether your partner is opposite sex or same sex, you must be married to adopt a child together. Again, single people are permitted to adopt, but a second parent cannot adopt with you unless you are married. A same-sex spouse can do a “stepparent adoption” to adopt your same-sex spouse’s biological child to ensure that both spouses have equal rights to the child. Whose consent do you need to adopt? If a child is 12 or older (or an adult), the adoptee needs to consent to the adoption. If one or both biological parents are relinquishing their rights to a child, the biological parent(s) must consent to the adoption. If a married couple is adopting, both spouses must consent to the adoption. What do I need to begin an adoption? A preplacement assessment is needed in most situations before you can be considered as a placement for a child. This is commonly referred to as a “home study,” and will ensure that your home is a proper environment for a child. Stepparent adoptions usually do not require this step, as the adoptee is usually already living in the home with the stepparent (but sometimes they are still required in a stepparent adoption in certain circumstances). A home study is also typically not needed if you are adopting a child who is related to you. For instance, if you were adopting a niece or nephew or a grandchild. What are the legal effects of adoption? For a biological parent: Divests all rights a biological parent has to their biological child. Relieves the biological parent from all legal duties and obligations to support their biological child, except for any obligation to pay past-due child support. For an adoptive parent: Confers legal parental status on a person who is not the biological parent of a child. Allows the adoptive parent to provide for their adoptive child via the laws of intestate succession (dying without a will), or by deed, grant, will, or other written instruments. For a child: Terminates the adoptee’s relationship with her former parent(s). Complete substitution of families for all legal purposes. For example, a child who is adopted by a stepfather can no longer inherit from his or her biological father either by intestate succession laws (if Father dies without a will), or via deeds, grants, wills, or other written instruments. Allows adoptee to inherit from the adoptive parents in all the same ways as a child born of the adoptive parents could. We can help with certain types of adoptions. Please feel free to reach out to schedule a consultation, or see if our firm can help with your particular situation. We have covered the basics of prenuptial agreements and separation agreements, and today we will tell you all about another private contract you can enter with your spouse: a postnuptial agreement. Postnuptial agreements are entered into after marriage (hence the prefix “post”) but before a separation or during a separation, in anticipation of reconciling. Prenuptial Agreements are entered into prior to marriage largely to determine how property and debt will be held by prospective spouses after marriage. Separation Agreements are entered into after separation or immediately before resolving all issues arising out of the marriage (property settlement, debt distribution, and alimony). If the couple intends to divorce after a separation, they will enter into a separation agreement instead of a postnuptial agreement.
What is a postnuptial agreement? A postnuptial agreement is a binding private contract entered into during a marriage that can address matters relating to property and debt distribution and spousal support in the event of a later separation or divorce. A postnuptial agreement cannot address child support or child custody. This type of agreement allows you to determine for yourself how your marital property will be distributed upon separation, rather than allowing a court to make that decision or negotiating the distribution upon a later separation. You can waive the right to file for equitable distribution with the court upon separation or divorce in a postnuptial agreement, as well. Many postnuptial agreements address what would happen financially if either spouse had an affair—essentially establishing some financial consequences if adultery was to occur. Once the postnuptial agreement is finalized, each spouse understands the financial impact of what would happen if the marriage failed. It can strengthen each spouse’s commitment to saving the marriage and promote faithfulness if there are specific financial consequences for having an affair. When should you have a postnuptial agreement? A postnuptial agreement can be useful when you and your spouse have been going through a rough patch in your relationship, but you want to try to work things out. A postnuptial agreement can also be helpful if one spouse starts a business and does not want the assets or liabilities to become marital property or if a spouse has children from a prior relationship and wants to keep some or all property separate to provide for the children. A postnuptial agreement can allow you to circumvent negotiations for property and debt distribution and spousal support if you end up separating later. A postnuptial agreement can also allow you to avoid the court system and an equitable distribution lawsuit if you were to head down the divorce path. How do you make a valid postnuptial agreement? The postnuptial agreement must be:
Do we each need a lawyer to get a postnuptial agreement? Yes, it is best for each spouse to retain their own legal representation and receive independent legal advice regarding the terms of the postnuptial agreement. The postnuptial agreement terms may have a spouse waiving significant legal rights to property or spousal support. To ensure that the postnuptial agreement will be upheld in a court of law if ever challenged, you want to ensure that both spouses have their own lawyers. Please contact our office if you are considering a postnuptial agreement to schedule a consultation. In 2021 in North Carolina, 41% of births were to unmarried mothers. In the same year in South Carolina, 45% of births were to unmarried mothers (see link here for source information). It is no longer uncommon to have a baby while being unmarried. If you are unmarried and having a child with a partner, it is best to protect the father and your child by establishing their legal relationship. You protect their legal relationship by establishing paternity, and if necessary, legitimating the child through the court system. Once paternity is established, unmarried fathers have the same parental rights as married fathers. Establishing paternity allows either parent to request child support payments from the other and protects the father’s right to parenting time with the child. Paternity addresses the father’s status as a parent to the child, not the child’s status as a legitimate child.
Please note: even if you are the biological father of the child, you are not presumed to be the legal father of that child unless you establish paternity and legitimate your child. If Mother is married and the biological father is someone other than Mother’s husband, the biological father must establish legal paternity. When you establish paternity, a legal obligation is created for the father of the child to financially provide for the child. Paternity also establishes a right for the child to receive government benefits, health insurance, and military benefits from the father. Establishing paternity does not, however, allow for a child to inherit from the father if the father dies—legitimation is the process that grants inheritance rights for the child. There are three ways to establish paternity, which are outlined below. 1.Dad and Mom marry after the birth of the child. If Dad and Mom marry at any time after the birth of the child, Dad is automatically presumed to be the legal father of the child. In North Carolina, you do not have to take any other steps to establish your paternity if you marry after the baby is born. Marriage not only establishes paternity but allows the child to be legitimated. Legitimation is an archaic term that harkens back to times when having a child out-of-wedlock was deemed taboo. Unfortunately, our laws have not caught up with the times and children conceived by unmarried parents are still considered “illegitimate” in the eyes of the law. If the father’s name was not initially included on the child’s birth certificate, a new birth certificate bearing the full name of the father shall be issued by the state after the parents’ marriage. In South Carolina, you will have to take additional steps to legitimate your child after you marry. You must provide a certified copy of the marriage license and both parents must sign an affidavit in front of a notary public attesting to the child’s parentage. Finally, you will need to request a certified copy of the birth certificate. 2.Sign an Affidavit of Parentage (in North Carolina) or a Paternity Acknowledgment Affidavit (South Carolina). An affidavit of parentage is a voluntary acknowledgment by the father that he is the biological father of the minor child. The affidavit can be signed in the hospital after the baby is born. It is a legal document signed under the penalty of perjury and swears that Dad and Mom are the biological parents of the child. Once the Affidavit of Parentage is signed, then Dad’s name can be put on the child’s birth certificate. In South Carolina, a Paternity Acknowledgment Affidavit creates a legal finding of paternity. This can also be done in the hospital after the baby is born. Both parents must swear in the presence of a notary public that the father is the biological and legal father of the child. You do not have to take any further steps to legitimate your child in South Carolina after completing the affidavit—your child will be entitled to inherit from you even if you die without a will. 3.File a paternity lawsuit, if necessary. Either parent can establish paternity by filing a lawsuit in court. This is the most costly and time consuming way to establish paternity. A paternity action can be filed by the father who wants to establish that he is the biological and legal father of the child, or it can be filed by a mother requesting the court to require the father to legally and financially provide for the child. Additionally, paternity actions can be filed by the child or on behalf of a custodial parent or the child (for instance, by Child Support Enforcement). If paternity is in question, a judge can order the father to take a DNA test or can order a mother to bring the child to be DNA tested. If you need help navigating the state requirements for legitimation, please reach out to us to schedule a consultation and we can help you understand what you need to do to ensure that as an unmarried parent, yours and your child’s rights are secure. Divorce can be costly—both financially and emotionally. Attorneys typically bill by the hour for their legal advice and representation. When they work on your case, receive an email from you, meet with you in person, or speak to you on the phone, they bill you for their time. While your attorney should be mindful of your budget and do everything in their power to keep your total bill low, you must account for the attorney’s time, experience, and skillset. Please note: there are circumstances outside of your control that affect your legal bills. For instance, if your spouse fights you tooth and nail over every small detail, your attorney will have to bill you for their time responding to each small issue your spouse brings up. As you move through your separation and divorce case alongside your chosen attorney, consider heeding the tips below to keep your bills down.
1. Be reasonable. Have realistic expectations regarding the outcome of your divorce, especially regarding your financial settlement and child custody arrangement. In North and South Carolina, you are generally entitled to 50% of the total marital estate and it is unrealistic (and costly) to go into negotiations requesting a great majority of the overall marital estate. You may waste money asking your attorney to fight for more than your fair share only to end up dividing all assets and debts equally, according to state law. Listen to your attorney when he or she tells you what portion of the marital estate you are entitled to receive. While you and your spouse may agree to whatever distribution of the marital estate you want to, even an unequal one, your attorney will always advise you what state law entitles each spouse to receive. Additionally, understand that as long as there are no extenuating circumstances, a child’s time will be shared in some capacity between the parents. Even if you are upset with your spouse for their role in the demise of your marriage, they are still your child’s parent and are entitled to parenting time. Try to keep what is truly best for your child in the forefront of your mind during custody negotiations. 2. Do your homework. If your attorney asks for you to complete some “homework” like providing a list of financial statements and account information, provide the list electronically in its entirety. Do not send your attorney each document piecemeal. Use a naming convention for your statements like identifying the year, month, and day of each statement then the name of the account. If you want bonus points (and to save even more money), provide a coversheet to your attorney with a list of statements provided, the date of each statement, and the statement balance. Providing your documents in an organized fashion saves your attorney a ton of time and saves you money! Much of divorce is separating and distributing assets and debts, and any time savings you can provide your attorney will save you legal fees. 3. Be open to compromise and choose your battles. The more you fight your spouse, the more your divorce will cost. Litigation raises the cost of your divorce. You can choose an alternative divorce process like proceeding with traditional negotiations between attorneys, mediation, or collaborative divorce, you will save money on your legal fees. At our firm, we assist our clients in engaging in alternative dispute resolution processes outside of the courtroom. We believe that avoiding the courtroom is better for families and produces better results, but it also saves you money in the long-run. Know and set your goals for your divorce with your attorney at the outset of your case to help you focus on the final outcome and not on each small disagreement and detail. 4. Be wise about which attorney you hire. Attorneys have various hourly rates and billing practices. Read your attorney-client engagement agreement carefully so you understand your attorney’s hourly rate and billing practices. Hire an attorney you can afford, who is open to highlighting where you can compromise with your spouse to save money while still achieving your most important goals. 5. Streamline your communications. Be thorough and prompt in communications with your attorney. Fully answer each and every question from your attorney in one response email—don’t send several emails answering one question in each email. Your feedback is important to your attorney, and sometimes time sensitive. If your attorney does not hear from you, they will have to follow up with you. Each and every time they follow up with you, they will bill you for that attempt to contact you. To streamline your communications, know when to call your attorney vs. when to email. If you anticipate having several follow up questions, a call might be best. Reserve a time on your attorney’s calendar by reaching out to their paralegal or legal assistant. Don’t call your attorney’s office every time you have a small question. Instead, make a list of your questions and set up a time to call or meet with your attorney to talk through all of your questions in one fell swoop. 6. Don’t treat your attorney like a therapist. Divorce has three major facets: legal, financial, and emotional. Only use your attorney to analyze the legal and financial aspects of divorce, not the emotional aspect. Venting frequently to your attorney about what a horrible person your spouse is may be emotionally cathartic, but it is better to discuss those things with your therapist. If you don’t have an individual therapist, ask your attorney for referrals. Attorneys regularly work with therapists who specialize in walking people through the emotional side of divorce and can recommend excellent local practitioners. If you utilize these tips, barring unforeseen circumstances, you will save money in attorney fees. Reach out today to schedule a consultation if you need help moving forward with your separation and divorce. |
AuthorLindsey Dasher is the Managing Partner at Dasher Law PLLC Archives
May 2024
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