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Family Law FAQ

What factors are involved in figuring out a child custody arrangement?

The most important factor in every child custody matter is the child’s best interests. Of course, each parent could have very different opinions about what their children’s best interests are and how to accommodate them.

When a judge decides a child custody dispute, factors they might consider include:

• Each parent’s ability to care for the child.
• The child’s relationship with each parent.
• The child’s health and educational needs.
• The child’s stated preference, depending on their age, reasons for their preferences and likelihood one of their parents is manipulating them.

The more evidence you can provide supporting your claim that the custody arrangement you want is in your children’s best interests, the better.

My spouse just told me they want a divorce. What should I do first?

Whether you saw this coming or your spouse’s announcement has stunned you, there are steps you can take to protect yourself and your children in the first days, weeks and months of the divorce process:

• Don’t immediately move out of the family home, if it is safe and possible to stay. This can help you in both property division and child custody matters later on.
• Make copies of all financial records, such as financial statements from your bank and retirement accounts. Remove valuable personal property, such as jewelry, from the home and place it in a safe deposit box only you have access to.
• Avoid arguing with your spouse, especially in front of the children. Fighting won’t solve anything at this point and your spouse could be use it as “evidence” that you are supposedly an unfit parent.
• Negotiate a separation agreement with your spouse to cover finances and child custody until the divorce is finalized.
• Consider solo and family therapy for yourself and your children to help everyone process their feelings.

What do I need to do to move out of North Carolina with my kids?

Even if you have primary physical child custody, you still may have to get your co-parent’s permission to move out of state or a certain number of miles away. It depends on the terms of your custody order. You likely will need to notify your co-parent of your intention to move. If they object, you might go to court, where the burden will be on the non-custodial parent to prove that moving is not in the children’s best interests.

As a grandparent, what are my child custody rights?

Grandparents have the right to seek custody of their grandchildren in North Carolina, but the law makes success a challenge. The parents’ rights to raise their children as they see fit are generally respected. To overcome this, a grandparent must show that giving them custody would be in the grandchildren’s best interests and that the “natural parents act inconsistently with their constitutionally protected status as parents” in some way. Examples include abuse or neglect of the children, or an addiction or mental illness that interferes with the parent’s ability to raise the kids safely.

How can grandparents get custody or guardianship of their grandchildren in North Carolina? What must they prove?

Grandparents seeking custody or guardianship of their grandchildren must demonstrate that the decision is in the children’s best interests. This may involve proving that the parents are unfit or that living with the grandparents is more beneficial for the children. They can do so by initiating legal proceedings by filing a petition in family court and providing evidence supporting your claim.

The court reaches a custody agreement by carefully considering the following:

• The physical and mental well-being of all parties involved
• The child’s relationship with each parent or guardian
• The ability of each parent to provide a stable and supportive environment
• Any history of abuse or neglect
• Child’s preferences, depending on their age and maturity

The goal is to ensure the child’s safety, happiness and overall well-being.

What happens to our debts and assets when we divorce in North Carolina?

A North Carolina divorce means marital assets and debts accrued during the marriage are divided equitably, not necessarily equally (50/50). Separate marital property, acquired before marriage or inherited, typically remains with its owner. The court considers income, the duration of the marriage and the presence of children before awarding a spouse’s support.

What constitutes a substantial change for modifying an existing North Carolina custody order?

North Carolina custody modification requires proof of a “substantial change in circumstances.” Common reasons include a parent’s relocation, changes in the child’s needs or alterations in either parent’s situation. Options available include:

• Mediation: You could work with a neutral third party to reach an agreement you both find acceptable.
• Negotiation: Alternatively, you discuss changes directly with the other parent. If agreed, file a consent order with the court.
• Motion to modify: File a family court motion outlining the changes you seek and the circumstances justifying them. Be prepared for potential hearings and legal representation.

North Carolina family courts always prioritize the child’s best interests when deciding custody matters.

How do North Carolina courts determine child support?

Courts generally base their determinations on child support guidelines established by the state. Judges consider all potential income sources of each parent, including salary, bonuses and commissions, and the number of shared children. When the parents are particularly affluent, the court may deviate from standard guidelines.

Of course, these are only generalized examples of what the court may look at in your case, and your specific situation might involve additional factors. Legal guidance can help you drill down on a more accurate estimate.

How is spousal support (alimony) determined in a North Carolina divorce?

Unlike child support, alimony is not automatically calculated in North Carolina. The court considers several factors to determine if it is necessary and, if so, the amount and duration. These factors include:

• Length of marriage: Longer marriages often lead to longer alimony periods.
• Income disparity: A spouse with significantly lower income than the other is more likely to receive support.
• Needs of each spouse: Individual financial needs, earning potential and child care responsibilities are considered.
• Marital contributions: Assets brought into the marriage and contributions to the other spouse’s earning potential may be considered.
• Marital misconduct: In rare cases, misconduct like adultery can influence alimony decisions.

Ultimately, courts aim to achieve a fair and equitable outcome for both parties when making spousal support decisions.

Can grandparents intervene or get custody in North Carolina child abuse/neglect cases?

Yes, grandparents in North Carolina have options to intervene or even obtain custody when their grandchildren are at risk of harm or neglect.

Obtaining grandparent custody requires demonstrating the child’s immediate harm in their current situation and your ability to provide a safe and stable home. A family law attorney experienced in child protection cases can help you navigate the legal process effectively while advocating for your grandchild’s best interests.

What can I do if my ex frequently violates our child custody agreement in North Carolina?

Sometimes, frequent violations of child custody agreements are a signal that the existing parenting plan is no longer sufficient for your needs. As long as your ex is not purposefully violating the agreement, you may be able to negotiate a modification to your North Carolina custody agreement that accommodates the changes in your situation.

If the judge in your county’s family court, such as Forsyth County or another local jurisdiction, agrees that your ex should be held in contempt, they can issue a formal reprimand, fines, order your ex to pay your legal fees, alter the child custody arrangement in your favor, or even send your ex to jail.

If the judge agrees that your ex should be held in contempt of the court, they can issue a formal reprimand, fines, order your ex to pay your legal fees, alter the custody agreement in your favor or even send your ex to jail.

Do I have to prove fault for divorce in North Carolina?

Unlike many other states, North Carolina is strictly a “no-fault divorce” state. You need to only allege that your marriage is irretrievably broken and be physically separated from your spouse for at least one year to get a no-fault divorce in NC.

The only exception is when you seek a divorce based on a spouse’s incurable insanity. If you file for divorce based on this ground in North Carolina, you must provide specific evidence that your spouse meets the definition of “incurably insane” and that you have been living apart for at least three years due to their condition.

Does it matter who files for divorce first in North Carolina?

If you live in a different county or state than your spouse, it can be an advantage to file for divorce first in North Carolina since that will determine which court has jurisdiction (authority) over the case. The only other advantage that filing first has is that the petitioner presents their evidence first if the divorce goes to litigation. It will have no practical effect on matters of child custody, child support or property division in a North Carolina divorce.

DWI FAQ

The prosecutor has offered me a plea bargain in my DWI case. Should I accept it or go to trial?

This is an important decision and depends on several factors. One thing to consider is the strength of the case against you. If the evidence is shaky or invalid for some reason, you might be better off pursuing a not guilty verdict at trial. Or if the plea deal being offered does not significantly reduce your possible sentence or help you get your driving privileges back sooner, it might not be worthwhile. You should discuss any plea offer with your defense lawyer before deciding whether to accept.

Estate Planning FAQ

What will happen if I die without a will?

The law calls a person’s death without a valid will dying intestate. When that happens, North Carolina’s intestacy laws determine who inherits the estate. These laws are based on blood relations, with the closest surviving relatives getting first priority. If your spouse survives you, they would inherit; if you are not survived by a spouse, your surviving children would inherit. If you die without any surviving children, your surviving parents would be your heirs. Priority goes to increasingly distant relatives until a surviving heir can be found.

The biggest problem with dying intestate is that the law — not you — decides who gets your assets after you pass away. Someone you wanted to inherit some or all of your wealth could be left out, while the person or people who do get your assets might not be who you would have chosen — possibly a total stranger.

What is the difference between a will and a trust?

A will and a trust are both estate planning tools, but they serve different purposes and functions. A will is a legal document outlining how your assets will be distributed after your death. It can also designate guardians for minor children and specify final wishes. Wills must also be probated.

On the other hand, a trust is a legal arrangement in which a trustee holds and manages assets on behalf of beneficiaries. Trusts can be set up to take effect during one’s lifetime (living trust) or after one’s death (testamentary trust). In addition, trusts bypass the probate process.

What is a power of attorney and how does it work?

A power of attorney (POA) is a legal document used by one person (the principal) to grant another person (the agent) to make decisions in their stead.

The scope and duration of a POA can vary significantly depending upon which POA is granted and the principal’s intentions. A limited power of attorney, for example, might be used to allow a friend or relative to complete a house sale while the principal is out of the country on military duty. A durable power of attorney for health care, meanwhile, may “spring” into play only if and when the principal becomes incapacitated and can no longer make decisions for themselves.

Discussing your options with an experienced attorney can help you understand what kind of POA meets your needs.

What is a breach of fiduciary duty?

When someone who is legally entrusted to manage another party’s interests acts in a manner that is contrary to the interests of that party, that is considered a breach of their fiduciary duty. A fiduciary duty can exist between all kinds of different parties, such as between a trustee and the beneficiaries of a trust, an estate executor and the deceased’s beneficiaries and heirs, or even between an attorney and their client.

Breaches can include self-dealing, undisclosed conflicts of interest, misappropriation of funds, negligent investments, overcharging, mismanagement of assets and failures to follow the principal’s instructions.

Personal Injury FAQ

What if I was partly to blame for the accident that injured me?

North Carolina is one of just four states to still use the pure contributory negligence doctrine, which states the plaintiff in a personal injury lawsuit cannot be awarded compensation if they are even slightly responsible for their own injuries. For example, the victim in a car accident caused by someone running a red light might get zero dollars in damages if the defense can show that the victim was driving five miles over the speed limit just before the crash.

How much does it cost to hire a personal injury attorney?

Most personal injury firms, including ours, work on a contingency fee basis. That means that you only pay for your attorney’s services if they are successful at recovering compensation for you through negotiation or at trial.

With a contingency fee arrangement, your attorney will take an agreed-upon percentage of your settlement or judgment plus associated expenses, like filing fees. This makes it possible for anybody to seek quality legal representation without worrying about out-of-pocket costs at a time when they may be struggling financially.

How long do I have to file a personal injury claim in North Carolina?

The statute of limitations for filing a personal injury claim in North Carolina is three years from the date of your injury. If you miss this deadline when pursuing your claim, you lose your right to seek compensation for your injuries forever.

Generally speaking, it is better to start the personal injury claim process as soon as is practical. That makes it easier to secure important evidence, nail down witness testimony and negotiate a fair settlement whenever possible.

Does suing someone mean I have to go to court?

No. You and the defendant can settle any issues outside of court. However, if the reason you are suing someone is not resolved outside of court, you may need to take additional steps, which may lead to litigation. Going to court after suing someone often relies on how the defendant responds. An experienced lawyer can help you begin a lawsuit and handle the ensuing negotiations.

Have More Questions About The Law?

Contact Scott Law Group at our Kernersville office at 336-993-5000 to schedule an initial consultation regarding your legal issue. Our firm also represents clients across the Winston-Salem region.