Is a custody order required before divorce can be finalized in North Carolina?

Posted by Jonathan Jerkins | Jul 30, 2019 | 0 Comments

It may seem logical that when you are in the middle of a divorce and when you have children together that things like child custody and child support would need to be determined first before a divorce is granted by a court. In North Carolina, oddly enough, this isn't the case. In fact, in Raleigh and throughout North Carolina, there are three routes you can take with respect to when custody is determined (including other issues, like child support, spousal support, and division of property).

One-Year Separation Prior to a North Caroline Divorce

In North Carolina, before you can obtain a divorce, you and your spouse are required to live separately and apart for one year. During this one year, if you and your spouse are amicable and can do so with good intentions, then you can work on a marital settlement agreement. This could include everything listed above, like what you want with respect to:

  • child custody;
  • child support;
  • spousal support; and
  • property division.

If you come to an agreement, after your one-year separation –with the court's approval – your plan can be incorporated into your divorce decree. But it often doesn't work out this way – spouses are often not speaking during the separation or possess bitter feelings that debilitate their ability to get along and come to decisions together civilly.

If you are unable to decide on any of these things during this time or if you want to contest anything with respect to these important issues, you may have to think about trial.

Divorce Court in North Carolina

When you and your spouse cannot agree on custody or support, you can always ask the court to make those decisions for you. That usually means a trial. Along the way to trial, there will be hearings to attend. During this time, too, you, your attorney, your spouse, and your spouse's attorney will have time to negotiate. If negotiations fail, trial ensues. At trial, witnesses and evidence are required to help determine all the issues you want to be resolved prior to a divorce.

But you don't always have to wait to have these issues decided before you get your divorce. You can get your divorce and simultaneously reserve your right to have the court hear these issues later: post-divorce.

Post-Divorce Issues in North Carolina

If you wait to have issues of support, custody, and property division decided after divorce is granted, you must tell the judge at the time of your divorce hearing that you elect to have the court determine these things after divorce. If you do not request it, you can't litigate on these issues but for the exception of child support and custody.

Just remember: for whatever your reason is to hold off on these issues until there is a settlement agreement or court order, each ex-spouse has co-equal rights especially with respect to the physical possession of any children.

Retain a Resourceful Family Law Lawyer in Raleigh, North Carolina

It's always good to make sure you have a custody agreement or order in place regardless if it is before or after your divorce. Without one, you risk your ex-spouse acting erratically and taking possession of the child on a whim, without your knowledge or approval and when it was your time – so you thought – to have physical custody of your child.

Don't take risks. Contact an experienced North Carolina attorney from Jerkins Family Law. We are dedicated to providing you with the best representation. Contact us today.

About the Author

Jonathan Jerkins

Jonathan "Jay" Jerkins, a native of Raleigh, North Carolina, intentionally focuses his practice on all aspects of North Carolina family law litigation and negotiations. Jay was admitted to the practice of law in North Carolina in 2014.


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