When Can a Child Choose Which Parent to Live with in North Carolina

There are many urban myths in family law, and whether a child can choose which parent to live with is one of the most persistent matters in a divorce.

A child’s best interests are the primary focus of North Carolina family law and there is no specific age for a child’s right to choose. As a result, it is not accurate to say that when a child reaches 12 years old they will have the right to choose which parent to live with. North Carolina custody law accounts for a child’s opinion no matter the age.

Split Custody Schedules

Most divorces have children spending split time with each of their parents. With some creativity, there are many ways to create a schedule that maximizes quality time with each parent. Often, what works when a child is in elementary school may not work in middle school or high school.

The biggest issues cited when a child expresses that they would prefer to spend more time with a particular parent involve access to electronics, cars, supervision of homework, and extracurricular activities (sports). One parent may place more weight on homework and grades, while the other parent may feel that sports and extracurriculars are more important. There isn’t any right or wrong approach and ultimately depends on the needs of the child.

Custody Schedules for Children Above The Age of 16

By the time a child begins to drive, visitation schedules often go by the wayside. The teen can spend time with either parent or instead use that time for personal relationships. Both parents usually experience a loss of control of their child’s schedule and unequal time with each parent could occur. Parents should practice the best possible communication with each other, keeping the child’s best interests top of mind.

Parents may not always agree with each other over punishments for broken rules in one or the other household. If both parents cannot agree on a single approach, each household should be consistent in what is or is not acceptable behavior, and what are appropriate punishments.

There are always cases in which your child may begin to go down paths that might lead to harm. Drugs, sex, and risky behavior are best addressed with a unified front from both households. However, filing a lawsuit is not always the best way to address these issues. It isn’t always possible for both parents to agree on a course of action.

We Can Help

Divorce matters are important and often require the assistance of an experienced family law attorney to ensure that the needs of the children and parents are properly considered. If you need legal assistance, contact Lundell Law Firm for more information and to discuss a strategy for pursuing your divorce or child custody matter. You can reach an attorney by calling (704) 288-4096, or by completing our contact form. We offer flexible payments without compromising our level of service.

Divorce Lawyer Puzzle

Why and When You Need a Divorce Lawyer

When a marriage is ending, it can be tremendously difficult to deal with both the emotional trauma and your fears about how life will go on after a divorce. The legal guidelines surrounding divorce lead to additional concerns. Questions like, “Do I need a divorce lawyer to file for divorce?” and, “What can a divorce lawyer help me with?” are common, along with many others.

Do I need a divorce lawyer?

In many cases, speaking with a qualified divorce lawyer about your legal options and how the divorce process works can reduce some of that anxiety. A divorce lawyer can also advise you on how best to protect your rights and interests, especially if you and your spouse don’t agree about how to resolve your divorce settlement.

When should you talk to a divorce lawyer?

  • You think you want to get divorced, but want to know what your options are.
  • You want to get divorced.
  • Your spouse is talking to a divorce lawyer.
  • You have been served with divorce papers.
  • You think your spouse wants a divorce and may be intentionally hiding or spending your marital assets.

Why talk to a divorce lawyer?

Divorce is a process that, at the end of the day, dissolves a legal partnership between two people. The kind of legal representation you need when faced with a divorce depends on the complexity of that partnership.

The more complex your divorce, the greater your need will be for legal representation to protect your rights and interests. Considerations when evaluating how complex your divorce case will be:

  • Assets and Property. The more property you and your spouse own, the more complex it will be to value and divide those assets. This can include savings, real estate, investments, retirement, business interests, and so on.
  • Children. If you and your spouse have minor children together, you will need to resolve child custody issues in your divorce either through negotiations or trial.
  • Support. The necessity of financial support of a spouse (alimony) or minor children (child support) can dramatically increase the complexity of your divorce.

You need to make sure you fully understand what you are agreeing to.

Often, the “quickie” or cheap, do-it-yourself divorces you see advertised can result in a settlement agreement that you may not fully understand. If you’ve agreed to something unknowingly, divorce settlements and parenting plans can be difficult and expensive to modify after the divorce is final, and you’ll end up having to hire a lawyer anyway.

The services of a qualified divorce lawyer at the beginning can help ensure that you don’t agree to anything you don’t understand – it’s their job to explain to you what the legal documents mean before you sign.

You may have legal issues to resolve that you aren’t aware of.

A lawyer can make sure that your divorce settlement addresses every issue pertinent to your situation, both big and small. During a do-it-yourself divorce process, people often overlook issues like future college costs for children, tax issues, division of retirement assets, parenting plan contingencies, proper allocation of debts, and other concerns. A divorce lawyer will be able to identify and ensure that your divorce settlement addresses all the issues.

Is it ever safe to divorce without hiring a lawyer?

If your marriage lasted a very short time (a year or two) and you and your spouse have no children, are not pregnant, have minimal assets (less than $30,000), no major debt (less than $15,000), and agree on all the terms of the divorce, the risks of divorcing without legal representation are much lower, though still present.

In most cases, however, divorces are not that simple. Consulting with a divorce lawyer can provide a wealth of information you may not have known. Representation from a divorce lawyer can ensure that the divorce settlement you receive will protect you now and well into the future, especially if your case involves property or children.

Contacting a North Carolina Divorce Lawyer

If you and your spouse have decided that divorce is the best course of action, we invite you to speak with an experienced North Carolina divorce attorney. Contact Lundell Law Firm for more information and to discuss a strategy for pursuing your divorce or child custody matter. You can reach an experienced family law attorney by calling (704) 288-4096, or completing our contact form. We offer flexible payments without compromising our level of service.

marriage-myths

Marriage Myths

We hear many of these marriage myths when counseling clients who are considering divorce:

 

1. Second marriages are more successful than first marriages.

The divorce rate of remarriages is higher than that of first marriages. This is often brought up at marriage counseling.

2. Cohabitation prior to marriage increases the possibility of an enduring union.

Studies indicate that those who cohabitate prior to marrying have a higher instance of divorce. Reasons for this are not fully understood, but some theorize that those who live together may consider relationships to be temporary.

3. Following a divorce, a man’s standard of living improves by more than 40% and a woman’s decreases by more than 70%.

Analysis of current data shows that a man’s gain is 10% and a woman’s loss is 27%.

4. Being unhappy at various times throughout a marriage indicates that divorce is eminent.

A recent study that interviewed couples over a 5 year period, found that eighty six percent of people who were unhappily married at the beginning of the survey, but stayed married, were happier 5 years later.

5. Men are more likely to initiate divorce proceedings.

Two-thirds of all divorces are initiated by women.

6. Having children together helps to create a successful marriage.

Couples are less likely to sacrifice their own happiness for the benefit of the children.

7. Children are better off when unhappy parents divorce.

Based on the recent findings, it is often better for the children if their parents stay together and work out their problems.

8. Following the divorce of their parents, children tend to resolve their divorce related problems relatively quickly.

Studies indicate that children of divorced parents experience more and longer lasting interpersonal problems than children who live with both parents.

9. Children of divorce have more enduring marriages.

Children who were products of divorce have a higher rate of divorce than the marriages of children from intact families because marital commitment is not familiar to them.

10. Following divorce, the children involved are better off in step-families than in single-parent families.

Evidence suggests that stepfamilies are no improvement over single-parent families, even though family income levels are often higher and there are 2 parents in the home.

Contacting a North Carolina Divorce Lawyer

If you and your spouse have decided that divorce is the best course of action, we invite you to speak with an experienced North Carolina divorce attorney.

Contact Lundell Law Firm for more information and to discuss a strategy for pursuing your divorce or child custody matter.  You can reach an attorney by calling (704) 288-4096, or completing the contact form on this website.  We offer flexible payments without compromising our level of service!

Telling Your Children About Divorce

Children and DivorceHow to Have the Divorce Talk with Your Child

Divorce is never easy, especially for children. The way you break the news to your children can direct the course of your children’s emotional and psychological state throughout the divorce process. The approach you and your spouse take when having the divorce talk with your children carries great weight, so make sure you do it the right way.

Before we get into a list of things you should and shouldn’t say to your children after you and your spouse have made the decision to divorce, it is important to remember that this news should come from both parents. Having a united front is one of the best ways to help your children cope with the news of divorce.

Things You Should Tell Your Children

Tell your children how this will affect them.

It is vital that your children come out of the conversation knowing how this decision will affect them. Tell your children not only about your decision, but also of the ramifications of that decision. Will this change where they live, where they go to school and how often they will see both of their parents? These are things your children need to know.

Tell your children where they are going to live.

In the same vein, it is important to tell your children that their living situation will likely change, even if you are unsure of all the details at the time you have this conversation. Whatever you tell your children, make sure they know that things will change in this regard.

Tell your children that you both love them.

Above all, perhaps the most important thought you should communicate to your children is that you and your spouse love them very much, and your decision to divorce is in no way their fault. Tell them that no matter what happens, your and your spouse’s love for them will not change.

Things to Avoid Telling Your Children

Don’t use accusatory language.

Blaming your spouse, a third party, or even inadvertently blaming your children for the divorce will, almost certainly, emotionally and psychologically traumatize your children. Blaming, whether overtly or subtly, is something that should never enter this type of conversation.

Don’t divulge too many details.

While you want your children to be aware of your decision to divorce and how this will affect them, there are certain details about your reasons for divorce that they have no need to know about. Sharing too much information usually does more harm than good.

Don’t oversimplify your explanation.

Just as divulging too many details about your reasons to divorce can be harmful, so also is oversimplifying your explanation of the situation. If the talk you and your spouse have with your children leads them to believe that nothing will change, you’ve done it wrong.

After you have finished explaining your decision to your children, be ready to answer their questions, be sensitive to their feelings and give them ample time to process the news.

Contacting a North Carolina Divorce Lawyer

If you and your spouse have decided that divorce is the best course of action, we invite you to speak with an experienced North Carolina divorce attorney. Contact Lundell Law Firm for more information and to discuss a strategy for pursuing your divorce or child custody matter.  You can reach an attorney by calling (704) 288-4096, or completing the contact form on this website.  We offer flexible payments without compromising our level of service!

child-custody-cases-experiencing-delays

Court Backlogs & Delays Impacting Child Custody Outcomes in North Carolina

Most states, including North Carolina, have adopted the Best Interest of a Child standard to determine all issues affecting children including child custody, parenting plans, visitation, child support and decision-making.   However, one factor missing from the court’s analysis is the overall impact of the court’s already crowded court docket or calendar.

The Cause of Crowded Court Dockets

In many jurisdictions, courts experience a backlog that prevents a child custody case from reaching the court in a reasonable amount of time.  Some courts have witnessed a three-year trend in growing backlogs that have resulted in countless families waiting over a year for their day in court to determine a parenting or custody plan that is in the child’s best interest.

In some states, delays stem from a requirement that a family undergo an evaluation if anyone in the household has a criminal record.  Other jurisdictions lack judicial resources and some judges lack experience in handling domestic relations or family law cases.  Many jurisdictions divide judges between criminal, domestic relations and civil litigation dockets.  While the multi-discipline approach allows a breadth of knowledge and expertise among the members of the bench it also appears to limit the ability of the court to handle an increased number of cases in a specific practice area.

No Real Signs of Relief Ahead

Regardless of the reason for growing delays in family law matters, especially contested custody battles, we don’t see any encouraging signs for improvement.  Many jurisdictions have experienced an increase in the number of cases filed due to a slightly improving economy and lower rate of unemployment (i.e. folks can now afford to retain the lawyer to handle the divorce).  The opposite is also true; pro se filings are on the rise, which lead to the court’s ongoing struggle with an increase in improper filings and an increase in contested hearings to resolve matters that could have been avoided by skilled negotiation and settlement.  In a band aid style solution, one jurisdiction outside North Carolina simply reassigned three judges to family courts to hear custody cases.  Of course, the real impact of the temporary fix is yet to be felt as other practice areas may be neglected or pushed off on other judges.

Crowded Dockets Lead to Other Issues

While courts continue to experience backlogs that impact the ability to conduct timely hearings to determine which parenting plan or orders best satisfy the best interests of a child, another danger may be created by rushing cases through the domestic relations gauntlet.  Pushing a case through to a hearing may be detrimental to both parties.  This is because it robs the parties of valuable opportunities to iron out a parenting plan that is in a child’s best interest.  The full court press to push the case through the system actually results in clogging the system more.  The court ends up taking its already limited resources to hear a case that could have resolved amicably (not only is it less expensive for the clients to work through a parenting plan with the help of their attorneys, the couple is more likely to follow a parenting plan that they help craft).  Further, the court is more likely to conduct a modification hearing in the future because the parties do not like the parenting plan ordered by the court.

Mandatory Mediation in North Carolina Child Custody Cases

With some exceptions, parties in North Carolina cases involving a contested issue of child custody or visitation are required to attend mediation prior to a hearing in their matter.  N.C. Gen. Stat. § 50-13.1(b).  While mediating these issues sometimes resolves the case in a timely manner, the unresolved cases lose valuable time being scheduled on the crowded dockets discussed above.

How Long Will It Take for My Case to be Heard?

At the time of this post, at least one county where we practice is scheduling hearings on child custody some seven months from the date of the request.  Practically speaking, this means that it may be at least eight to nine months from the date of filing an action for custody until the parties have an opportunity to be heard by a judge.  This is because the case may not be placed on a court calendar until an opposing party has an opportunity to respond, and the parties have  attended an unsuccessful mediation.  For these reasons, it is increasingly desirable to attempt resolving child custody issues with the help of experienced attorneys and mediators, rather than waiting for a court to decide a case.

Contact an experienced North Carolina Family Lawyer at Lundell Law Firm for more information and to discuss a strategy for pursuing your child custody matter.  You can reach an attorney by calling (704) 288-4096, or completing the contact form on this website.  We offer flexible payments without compromising our level of service!

free trader agreements

Free Trader Agreements in North Carolina

As a divorce lawyer practicing in Union County, clients often ask me about “Free Trader Agreements” or provisions. What are they? Do I need one in my separation and divorce? Divorce lawyers often include such provisions in Separation Agreements. Let’s review what free trader agreements are, and whether you need one in your divorce or separation.

What is a Free Trader Agreement?

Free Trader Agreements allow a husband or wife to purchase property after the date of separation but before an absolute divorce without the necessity of having the other spouse being placed on the deed. The most common scenario—husband and wife separate. One spouse stays in the former marital home. The other spouse moves out and intends on buying a new place. However, the paperwork gets caught up because the spouses refuse to both sign and be on a deed for new property together. Obviously, the parties do not want this. What to do? This is the basic premise behind a Free Trader Agreement.

With a Free Trader Agreement, the spouses can freely purchase real property without placing the other spouse on the deed. This, by no means, will allow one spouse to sell the former marital home without the consent of the other—that is not what this is for. Instead, this allows the “purchasing” spouse to keep that real property as a separate asset and a separate obligation (ie—the mortgage). This can have huge value for both parties.

This document can also address the obligation that each party has to the other to refrain from attempting to get credit in the others’ name, as well as to promptly pay all debts and financial obligations incurred from the date of separation on.

Free Trader Agreements should be drafted in accordance with N.C.G.S. 52-10 and 39-13.4, they must be signed by both parties and notarized, and are filed with the Register of Deeds.

I Already have a Separation Agreement…Do I need a Free Trader Agreement?

If you do not have a recorded Free Trader Agreement, this can be very problematic as North Carolina requires parties to live separate and apart for at least one year before a party may file for divorce. Any plans to purchase, sell or refinance real estate may be put on on hold until the 12-month waiting period is over. Even after parties that have legally separated and remain separated for 12 months, it can take an additional two or three months to obtain the actual divorce judgment. Often during this process, my clients will need to either acquire or transfer real estate after their separation and prior to entry of a divorce judgment.

Most North Carolina divorce law firms include some standard “free trader” provisions in their Separation Agreement and Property Settlement Agreements. If drafted correctly and properly executed, these provisions may be completely enforceable, however without a separate record-able document containing a Free Trader Agreement you will be forced to record your entire separation and agreement and property settlement with the local register of deeds. This may not seem like a big deal, however recording costs can be rather high for a long documents, and more importantly you may not wish to have your personal life exposed like that for all the world to see into posterity. Anyone and everyone could access your entire separation agreement if the whole document is recorded.

Speak to a Monroe/Union County Family Law Attorney

If you are unsure whether or not you will be purchasing property after your separation and prior to your divorce, please make make sure you talk with a local divorce lawyer to discuss the matter prior to entering into any divorce settlement or Separation Agreement and Property Settlement. Call Lundell Law Firm at 704-288-4096 to discuss all of the issues surrounding your separation.

 

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