Custody


#1

If you do not have a current custody order then you will need to file for custody. Since you had a previous agreement, you need to go pick up your son. If you have a signed agreement, take it with you. You may consider going by the police station to ask them to go with you to pick up your son, if the agreement has custody listed in it. Extra visitations can be arranged but are not generally forced on the custodial parent.
If you have custody agreement then your ex will have to file for custody and due to the previous posts about the contact, his actions, and your current arrangement, it’s unlikely that he would win.

The courts do not generally split up siblings and will not look kindly on the fact that your ex has allowed you to have primary custody since the separation and is now using your son as leverage. This could be considered kidnapping, depending on what your agreement states and given that your ex is asking for “ransom”.

You need to consult an attorney where you live now if you have been there long enough to be considered a resident. If not, then you need to see counsel in NC. File for equitable distribution. You need to make a list of the marital assets your ex took and what you kept. You need to make out a schedule of visitation that will work with your ex’s military duty. You are entitled to 1/2 the marital assets. If your ex kept 90% of the marital assets, then he owes you 1/2 the value.

You are allowed to rent a home from a friend. Make sure that you have record of the rent paid, to protect all of you. It is not illegal and your ex can do nothing about it.

I do not know if you are or can file in NC, but if so, there is little that he can do. Regardless of whether or not he signs the papers the divorce will go through. Again, that’s if you are filing in NC. You will need to check the state you live in now. Please consult an attorney.


#2

Thank you for most of the information.

I live in NC and i have an attorney here as well as he does. He is in IL. He told me that if he doesn’t sign the divorce papers then i will have to wait over a year to get the divorce. How is it so that the divorce will go through anyhow? I know he won’t be out of the US until around late March beginning of April.


#3

You need to file an action for Equitable Distribution of property along with your divorce complaint in order to settle the property issues. You should discuss this issue with your attorney to make sure you understand your options. If you file for divorce and the judgment is granted prior to your property issues being settled you will lose your right to Equitable Distribution.

As for what your attorney said I am confused. There is no way to legally obtain a divorce in North Carolina prior to having been separated for a year. Even after the year


#4

Thank you Erin for your response.

I was meaning that my STBX attorney told him that we can’t get the divorce unless he agrees with it, not my attorney. Can you please explain to me the process of getting the divorce signed by the judge after the 1 year, 1 day mark?

Feb 2009 will be our 1 yr mark.


#5

After the one year, one day requirement, you would file for absolute divorce. The ex is served. The ex has 30 days to respond to the this. If the ex does not sign, then you will be required to testify that the dates are correct, you have been separated the required amount of time and that all the other issues are either final or being decided at a later date (ED). Then you will be awarded your absolute divorce. Most ex’s think that if they just don’t sign, the divorce will not be granted. That’s not the case in NC.


#6

So, what you are saying is this…

March 2, 2009 divorce is filed. Paperwork is then sent to him (or is it his attorney) and if there is no response then we set up another court date for me to appear?

Now does the 30 days start when he gets the papers and we have the return receipt or when it is filed in court? Both our attorneys are here in town but he will be at Ft Benning Ga for training unless he is over seas by then. (i don’t think he will be)


#7

Yes, the papers are sent to him possibly via his attorney. I’m not certain about that. My husband’s ex’s attorney had dropped her by the time he filed the divorce so the papers went to her. He knows that she was served.
The 30 days begins the day the spouse is served.

If there is no response by the end of the 30 days, your attorney should set up the divorce to be “heard”. Basically, it’s just testifying that, yes you have been married ? number of years, yes you were married on ? date, yes you were separated on ? date and have remained living separate and apart from one another for the required length of time for NC law. Maybe someone that has had to do this can explain in more detail, but from what I know…it’s not a big deal.


#8

Yes. You will file for divorce on day 366 of your separation. Your ex has 30 (after receipt) days to respond and then the matter may be set for hearing. If your attorney makes a motion for summary judgment, the hearing may be had within 10 days of serving notice to your ex or his attorney.
If the hearing is had via summary judgment there is no testimony at all. Your attorney will simply ask the judge to grant the divorce based on the sworn pleadings. (The complaint you filed).

If a regular hearing is set you will have to testify briefly as to the information contained in the complaint, and your divorce will be granted.

The hearing itself usually lasts no longer than a few minutes.

Erin E. Clarey
Attorney with Rosen Law Firm

Raleigh Office
4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.787.6361 main fax

Charlotte Office
301 McCullough Drive
Suite 510
Charlotte, NC 28262
Main Phone: (704)307.4600
Main Fax: (704) 943.0044

Sutton Station
5826 Fayetteville Rd. Suite 205
Durham, NC 27713
Phone: (919) 321-0780

ROSEN.COM

The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.


#9

One last question, then i think i will have understood it all.

Okay, STBX is leaving 1-23-09 to Ga for training. What if he won’t give us his address to be served? His attorney is here in town, but what if his attorney doesn’t have his address as well? I don’t think his family would give it to me.

But what will happen if this happens? Should we just send it to his attorney to get the receipt of the service’s or what?


#10

If your ex is represented by counsel you may send the papers there. The attorney can have your stbx sign an acceptance of service.

Erin E. Clarey
Attorney with Rosen Law Firm

Raleigh Office
4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.787.6361 main fax

Charlotte Office
301 McCullough Drive
Suite 510
Charlotte, NC 28262
Main Phone: (704)307.4600
Main Fax: (704) 943.0044

Sutton Station
5826 Fayetteville Rd. Suite 205
Durham, NC 27713
Phone: (919) 321-0780

ROSEN.COM

The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.


#11

Okay i understand what you are saying. But again, what if his attorney doesn’t have his address to sign the acceptance? I am so worried he is going to make it hard for the divorce to go through by him not giving his tempertory address.


#12

If your stbx cannot be found you will have to proceed with service by publication. This consists of publishing an add in a news paper of general circulation in the area where he last lived.

Erin E. Clarey
Attorney with Rosen Law Firm

Raleigh Office
4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.787.6361 main fax

Charlotte Office
301 McCullough Drive
Suite 510
Charlotte, NC 28262
Main Phone: (704)307.4600
Main Fax: (704) 943.0044

Sutton Station
5826 Fayetteville Rd. Suite 205
Durham, NC 27713
Phone: (919) 321-0780

ROSEN.COM

The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.


#13

I thought so, Thank you.

I guess I will just have to leave it up to the attorney. It is hard to get information from him. All i hear is “Don’t worry about it”. Well I’m the type of person who needs it explained, maybe even Barney style.lol

I just want my divorce over with since it has been almost the full year. I don’t want to play games with a person who doesn’t even understand the laws. Only what his mother is telling him. Thank you again.


#14

I understand. Best of luck to you!

Erin E. Clarey
Attorney with Rosen Law Firm

Raleigh Office
4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.787.6361 main fax

Charlotte Office
301 McCullough Drive
Suite 510
Charlotte, NC 28262
Main Phone: (704)307.4600
Main Fax: (704) 943.0044

Sutton Station
5826 Fayetteville Rd. Suite 205
Durham, NC 27713
Phone: (919) 321-0780

ROSEN.COM

The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.


#15

My STBX has had my son since Dec 6th 2008 he was suppose to have my son back to me by Dec 28th well late at night on the 27th he said he wasn’t bring him back until january 9th 2009 because we have a child support court date for NCCS to take over child support.

Anyhow, he has orders to go active duty on January 23rd 2009 to head to Ft Benning Ga to do training then head over seas. Our divorce is to be final come the beginning of March 2009. He is now making threats to me. He said he won’t sign the papers unless i give him everything we owned together which is nothing because he took it all and also custody of our 2 yr old son. And he has been living with me with my STXB having visitation.

I would like to know why, how, and what is up with his mind. Can he do this? Will he get it? What are my rights on the property. The only think i have left is a saddle and my oldest son uses that and that is all i have of the property. 1 single saddle. He won’t pay me for what he took and it is over 10,000 he would owe me.

My main concern would be my son. He is 2 yrs old and has been living with me this whole time with his siblins as well. Also another thing. I am renting a house from a friend, yes just a friend. My STXB is jealous of this person big time. It is only a house that my children and i can live in without having to deal with landlords. Well he kinda is a landlord.lol Anyhow is it against the law for me to rent a home from a guy friend if only the kid and i are living in it? I pay him rent. My STBX is wanting to use that against me in court and also go after him for what i really don’t know.

Please help me on this… Thank you so much!