In an agreement you can put things any way you need them stated. You can state that you have joint physical and legal custody. Some parents have equal time but that may not be an option for you so you would put into the papers that when you are deployed you will pay her $X amount and that when you are home neither will pay. If you are going to draw up the agreement this way you need to be very specific about what you are covering for the children. School supplies, medical/dental, clothing and shoes. Who will pick the child up, who will drop the child off, who will pay for child care and insurance…trust me that these “little things” can turn into a big arguement. If you and she are able to discuss things as they come up then it’s normal for the parents to change schedules and things in the agreement as needed. Things change, children grow up and their needs change, schedules change. It’s easier and cheaper to use an agreement as a basis for just raising your children together separately than to go through the courts. It’s a good idea to have a consultation with an attorney to make sure that your agreement covers all your rights. You should also put into the agreement about equitable distribution so that that is covered. You are both entitled to 1/2 the marital assets and responsible for 1/2 the marital debt. But you can agree to an unequal distribution. Have the agreement signed and notarized.
If you want to take this through the state then one of you will pay the other and there can be no disruption of payments. Whichever makes more money will pay the other according to the guidelines on the home site (CS calculator). Child support is then based on the income of both parents, the number of overnights with each parent, insurance and child care costs. I think this would be the only need to designate one of you as custodial parent.
I assume from reading this post that you are going to use the last 11 months as your separation? I must tell you that you must put into the agreement the date of separation. You must be separated for one year and one day prior to filing for absolute divoce.
I think we’ve gotten the distribution part down, she said she doesn’t want anything from me. Zero alimony, no pension, and none of the property or belongings (we have a house and 2 cars plus approx. $13,000.00 in joint credit card debt because of her ‘addiction’.) So that piece is down in writing, just not signed…yet.
So as far as the custody piece goes I understand that I need to be specific, I’ve spoken with the JAG legal assistance and asked them to review my contract for errors and they pointed out to me that I need to be very detailed in that portion. So I will begin to negotiate with her some more and find a means to this end.
But this did not answer my question about defining a primary custodial parent. Do I have to put that in writing that I am the custodial and she is the non-custodial?
And if she is named the custodial parent, will I have to pay her child support during the 6 months out of the year that she does not have physical custody?
And as for the last portion… yes I am using the 12 months of the deployment as our separation and that is in writing as well.
As far as naming either of you as a custodial parent you do not need to do this unless it goes to court. With joint legal and physical custody you are each custodial parents when the child is with you. You have equal rights to make decisions for the child.
My husband’s final agreement states day by day who the boys would stay with beginning a specified date and continuing that way. It states that she will have them even number years on Christmas Eve and we have them Christmas Eve on odd number years…Thanksgiving and Halloween are listed as well as Mother’s Day and Father’s Day. The end statement says something like “…the children shall be in the care of the plaintiff father any time not specified or noted…” I believe that this technically gives him custodial rights but they have joint legal and physical custody with equal time. He pays her child support and they split almost everything else.
The same is true with the support. If you are only going to pay her child support during her custodial time then that is what you would put into the agreement. You need to be specific and keep records of when the children stay where so you do not have to defend against this later. If this goes to court you would pay her child support on a monthly basis until the child is 18 or graduated high school, regardless of who the child is actually staying with, and you would have to go back to court to have this changed.
My suggestion for your situation is that you do not mention custodial or non-custodial parent. Joint custody means whatever you define it as in the agreement. So you put that you have joint legal and physical custody with her having primary physical custody for 6 months out of the year and you having the remaining 6 months primary physical custody. NC defaults to joint legal custody and IMHO it should be that way, that way both parents have a say in major decisions for the child/children.
Child support is calculated based on the number of overnights spent with each parent and then a monthly amount of support is determined. That means if the child spends 100% of the time with you for two months out of the year and the majority of the time with the other parent during 10 months of the year, you would still pay child support during the time when the children were with you. Of course, you are free to agree to an alternate arrangement.
An agreement on child support can be as basic as you want and does not have to specifically name the custodial parent, but it should say what the schedule is, who is paying support, how much is being paid, etc.
P.S. Please feel free to bring up this or any other topic on our live call-in show every Wednesday at 11:00 a.m. EST. Visit radio.rosen.com/live for details
Helena M. Nevicosi
Attorney with Rosen Law Firm
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I am a Soldier, currently deployed in Iraq and my wife of 10 years and I have begun to discuss divorce and we are agreeing to do this peacefully and without ‘fault’ even though I know she can be found at ‘fault’ if I wanted to press the issue.
I’ve been deployed for 11 months now and I plan to file for Pro Se Absolute Divorce when I go home for R&R leave in a little over a month, followed by a return to Iraq and then home once again in approx. 2 months from that date. So I’m trying to get all my ducks in a row.
She has agreed to everything and admits this is basically her fault and stated she will give me everything, except full custody of our children. I do not want to take the kids away from her, she is a good mom, just not a great wife, so with that said I want to remain friends and share joint custody and she agrees.
I have been researching and drafting up a seperation agreement to include in our filing. But I need to know some specifics about North Carolina law regarding a custodial parent and a non-custodial parent. More specifically concerning child support. Does an agreement require the definition of a primary physical custodian? Or can we do this 50/50? I do not want child support from her, but she will need it from me. So how can I word the agreement to state that she will only get child support while she has physical custody?
I have heard rumor that there has to be a custodial parent identified and that the non-custodial parent will have to pay child support for 12 months, no matter how the actual amount of physical custody is broken up.
Also, just so all the details are available, my soon to be ex will remain living in my residence under verbal agreement and will remain some-what dependent on me for the bare necessities. This I do not feel is a big issue, but I want to put it in writing that as long as the children reside in my place of residence I do not HAVE to pay her, since I will be providing care for them anyways.