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Arbitration is an alternative dispute resolution method that allows for parties to have their family law issues resolved without going to court.
North Carolina’s Family Law Arbitration Act (N.C.G.S. 50-41) allows couples to choose to arbitrate any or all issues arising from a separation or divorce, except for divorce itself. This can include any or all of the following issues: Equitable Distribution, Alimony, Child Support, or Child Custody. Arbitration is not a mandatory requirement and is something that the parties must mutually agree to before submitting an issue to an arbitrator. The parties agree to submit an issue or issues to a neutral third-party arbitrator, who acts almost like a private judge by hearing evidence and providing a binding or non-binding decision. The parties typically share the cost of the arbitrator unless their agreement allows the arbitrator to allocate the costs differently. South Carolina has not adopted a family-law specific arbitration act like North Carolina, but parties may mutually agree to utilize arbitration as an alternative dispute resolution for property and alimony issues under the Uniform Arbitration Act, which South Carolina has adopted. South Carolina case law has held that it is not permissible to submit child custody and child support issues to binding arbitration with no right to judicial review. Child custody and child support issues may (or, when there is a lawsuit pending, must) be submitted to mediation as an alternative dispute resolution prior to trial. In South Carolina, arbitrators can be certified by South Carolina’s Board of Arbitrator and Mediator Certification, but parties can choose an arbitrator who is not certified by the Board. All arbitrators must follow the Alternative Dispute Resolutions Court Rules and the Code of Ethics for Arbitrators that South Carolina has adopted. Arbitration Process In arbitration, parties have a private trial in front of an arbitrator who issues a binding or non-binding decision that the parties must then follow. Similar to a trial in front of a judge, the parties present documentary evidence and testimony, and then the arbitrator (instead of a judge) issues a decision. An arbitrator can issue subpoenas for witnesses to appear and for production of documents or records needed. The arbitrator administers oaths for witnesses to testify and can take depositions, if needed. You can and should be represented by the attorney of your choosing during arbitration. Benefits of Arbitration
Disadvantages of Arbitration
If you are interested in arbitration or other alternative dispute resolution mechanisms, please reach out to our office. As a firm, we focus on out-of-court resolutions for our clients and arbitration is a great option for many clients. Lindsey is available and qualified to mediate or arbitrate your case in North Carolina or South Carolina. Be sure to go back and review our first two posts in this three-part series on stay-at-home parents and what to expect upon separation and divorce financially. Today's post will address child custody and child support.
Child Custody Being a stay-at-home parent and/or the primary parent during the marriage does not necessarily mean that you will continue to be the primary parent for child custody upon separation. Your co-parent and spouse will inevitably step up and do more active parenting than they did during the marriage because they will no longer have the support of a stay-at-home parent. It can be difficult to let go of the primary parent role as a former stay-at-home parent, but it can only benefit your children to have two engaged, active parents contributing to their lives. The standard for determining child custody in court is what is in the best interests of the children. If you are resolving child custody outside of court, that best interest determination will remain the most important consideration in reaching a child custody agreement. Often, equally sharing physical custody of the children after separation is a great option for kids and families (i.e., alternating full weeks with each parent). However, if one parent has a more demanding job that doesn’t allow for a traditional week on/week off shared parenting arrangement, there are certainly alternatives. Perhaps the parent with the demanding job can accommodate a longer weekend of parenting time from Thursday to Sunday or a mid-week overnight for the kids. Child custody arrangements and schedules are not one-size-fits-all, and you and your spouse can discuss and agree on what will be the best custody schedule for the children and your family long-term. Our firm can educate you on options for child custody schedules if you aren’t sure what would be best for your family. Child Support If upon separation, you are still a stay-at-home parent with primary physical custody of the children and/or you are earning significantly less income than your spouse, your spouse will be required to pay child support to you. When you have children, both parents have a duty to support their children financially whether those children live with you 100% of the time or 0% of the time. Both parents have a responsibility to put a roof over their heads, clothes on their backs, food in their bellies (even if they won’t eat the broccoli you make!), pay for their health insurance and medical care, provide or pay for childcare, and provide for any other necessities. To learn more about the basics of child support in North Carolina or South Carolina, please refer to our past blog post by clicking this link. Please reach out to our firm to schedule a consultation if you are a stay-at-home parent and need guidance on your child custody schedule and child support obligation. We are very familiar with supporting stay-at-home parents through this transition and can help you, too. 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. |
AuthorLindsey Dasher is the Managing Partner at Dasher Law PLLC Archives
May 2024
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