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Helping you make positive life changes,
one step at a time

New Divorce And Custody Laws Proposed By The North Carolina Legislature

Certain bills proposed in the North Carolina state legislature have been getting attention recently. While most of press so far has been about a law seeking to allow the establishment of a state religion, family lawyers like us have been closely watching two other bills that would have a significant effect on how divorce law works in North Carolina.

The first is a bill proposed by Republican Senator Austin Allran from Alexander and Catawba counties. Dubbed the “Healthy Marriage Act,” the new law would profoundly change the way that divorces are granted in North Carolina.

Currently, North Carolina law allows for anyone’s marriage to be dissolved if the spouses have been living separate and apart for a period of one year. When that year has elapsed, either party may then file a Complaint for Absolute Divorce and allege that the parties have been separated for the requisite 12-month period. The Court then conducts a hearing, and if satisfied that the parties have indeed been separated for one year, the divorce may be granted.

Under the Healthy Marriage Act, getting divorced would significantly longer. The new law requires a person seeking a divorce to provide their spouse with a written declaration of their intent to end the marriage. After sending the written notice to their spouse, what’s next? It’s time to go to school! The Healthy Marriage Act requires that both spouses attend classes on conflict resolution and improving communication. If the couple has one or more children, they must also complete a class about the impact of divorce on children. The proposed law requires that this class be at least four hours long. The bill is silent on the subject of where these classes are taken or who pays for them, but it seems safe to assume that the divorcing couple will be responsible for the bill.

After the written notice is given and the classes have been completed, couples wishing to divorce must then play the waiting game. The Healthy Marriage Act requires a two-year waiting period, twice as long as the current one-year period of separation. It is also important to mention that this two-year waiting period begins only after the formal written notice is given to the other spouse. This means that if the couple separates but forgets or otherwise neglects to send the notice, they may be waiting longer than two years.

Whether this newly proposed law would actually make marriages healthier remains to be seen. For now, it seems that the law would make the divorce process in North Carolina significantly longer and more expensive. If the Healthy Marriage Act passes, the experienced family law attorneys at Hager Divorce & Family Law will be ready to help divorcing couples satisfy the new requirements with the least amount of worry and hassle as possible.

The bill can be viewed at http://www.ncleg.net/Sessions/2013/Bills/Senate/PDF/S518v0.pdf. For more information, please visit the North Carolina General Assembly’s website. As of April 1, 2013, it has been referred to the Rules Committee.

The second bill that divorce attorneys statewide are keeping an eye on is Senate Bill 610, which has to do with how child custody disputes are resolved in North Carolina.
The North Carolina legislature has an established tradition of bestowing family court judges with broad discretion in making decisions about child custody and visitation. The new bill, if signed into law, would be a step away from that tradition. The proposed law would create a presumption of “shared responsibility,” or what is more commonly known as joint custody.

Currently, Judges in North Carolina are given a lot of leeway in how they determine child custody cases. The fundamental question that North Carolina courts must consider in deciding a custody case is “what is in the best interests of the child?” In making that determination, the Court must consider everything that might be relevant to the child’s well-being, such as acts of domestic violence, the safety of the child, and the level of involvement in the day-to-day care of the child. An order for child custody must include findings of fact which support the Judge’s determination of what is in the child’s best interests. Judges in North Carolina weigh a multitude of different facts and factors, and are free to make a determination that they think will best serve the child.

Senate Bill 610 would take away some of the broad discretion that our Judges are trusted with. If made law, the bill would state an official public policy with regard to the topic of child custody: that joint custody (or “shared responsibility”) should be the default situation. The Bill’s proposed State policy purports to “[e]nsure that a child will have maximum contact with both parents through a presumption of shared responsibility unless it has been established based on a preponderance of the evidence that one of the parents is unfit or obstructs a healthy relationship with the other parent.” This presumed shared responsibility standard requires that each parent have as close as possible to an equal amount of time with the child, but not less than thirty-five percent of the amount of custody time.

Although the bill could be seen as a boon to fathers who feel like they start “behind the eight ball” in contested custody situations, many in the legal community have expressed concerns about the practicality of the bill and whether it may cause more problems than it solves. If passed, there will be implications for North Carolina’s child support processes and the North Carolina Child Support Guidelines. Another concern is just how North Carolina courts would apply the presumption of shared parenting. One can foresee many situations in which neither parent is “unfit,” but circumstances dictate that the child cannot or should not split their time between two parents in two households. Hager Divorce & Family Law is keeping an eye on these important developments in the General Assembly, and will be ready to counsel clients regarding their effect if passed. If you are going through a separation or difficulties related to child custody, child support, or financial issues related to a divorce, Hager Divorce & Family Law can provide up-to-date advice on the laws of North Carolina and your legal rights and responsibilities.

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