Child custody and moving out during separation

I plan to ask my wife for divorce soon. We own a house and have a mortgage, which is primarily paid by my. We have a 3.5 year old. I read that in NC we have to be separated for a year before filing for divorce. I’m worried that the moment I mention divorce/separation, she will take my son to her mother’s house that is 3 hours away. Do I have any recourse?

While you have to wait a year after separation before filing for divorce, this does not preclude you from negotiating and settling, or filing a lawsuit, for all other issues such as custody, child support, alimony, postseparation support, and equitable distribution.

If your wife takes the child three hours away for the purpose of interfering with your custodial time as a parent, then you could file a custody lawsuit against her. If she took the child out of NC for the purpose of evading the jurisdiction of the NC courts, then you would be able to file a motion for emergency custody.

Anna Ayscue

Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest

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