North Carolina Judicial Branch

Child support is money paid by a parent for the purpose of meeting the reasonable needs of the parent’s child for health, education and maintenance.

Child support can be arranged in several ways.

• Parents can agree on an amount for child support in a Separation Agreement. See the Separation and Divorce Help Topic for more information.  
• Parents may sign a Voluntary Support Agreement (VSA). A VSA is a child support agreement signed by both parties and then by the judge. Once a judge signs the VSA, it becomes a court order and is enforceable by the court.
• Child support can be arranged through the Child Support Enforcement Agency (CSE).
• The person who wants to receive child support can file a civil complaint in district court.

Any parent or person who provides care for a minor child living in his or her home can file for child support.

If you are caring for a child who lives with you, you do not have to have a court order granting you custody before requesting child support.

All parents are responsible for supporting their children, unless the parent’s rights have been terminated. If a parent is under the age of 18, his or her parents can be obligated to pay child support until he or she reaches the age of 18. Non-parents are otherwise not responsible for child support.

All children living in the United States are entitled to child support, regardless of the citizenship or immigration status of the child or the parents.

Parents can be obligated to pay child support even if they have joint custody of their children. See below for more information on how child support is calculated.

A child support case can be filed against an alleged father even if his name is not listed on the child’s birth certificate.

You may request a paternity test.

A judge will decide whether to grant your request. If CSE filed the child support case, the agency will require a paternity test. You may be charged for the cost of the test if you are found to be the father.

Child custody and child support are separate legal issues. Even if the other party denies you custody or visitation time, this does not affect your obligation to pay child support. See the Child Custody Help Topic for more information about custody and visitation issues.

If your case is filed through CSE, you can create an account here to view the status of your case, payments, and any arrears.

You can find the location of your county’s CSE office here. Your local CSE office will tell you what information the agency needs to assist you.

A child support case may be filed in the county where the child lives or is physically present or in a county where a parent resides.

Yes, you can request assistance from CSE. Contact your local CSE agency for guidance.

Yes. Contact your local CSE agency for guidance.

CSE has various tools that may be used to locate noncustodial parents. Providing information about the other parent, such as the person’s date of birth, social security number, or last known address, can assist the agency in locating the person.

The other party must be “served” with a copy of the complaint. You may have the other party served by a sheriff’s deputy or through certified mail. The other party has 30 days to file an answer.

You have 30 days after receiving a complaint to file an answer with the court. You may hire an attorney to assist you or represent yourself.

Many cases will typically be scheduled for the same day. The judge or the CSE attorney will typically begin court by calling the names of everyone expected to be in court that day, and address each case one at a time.

• If you are the person entitled to receive child support, you should bring any documentation related to expenses paid on behalf of your child.  For example, you should bring day care receipts or medical bills for the children. You should also bring proof of your income.  If you have other children in the home, you should bring documentation to show that the other children live with you.
• If you are the person who will be paying child support, you should bring proof of your income. You also should bring documentation of any payments you have made to the other person or expenses you have paid for the children. For example, you should bring proof of payment of rent, cell phone or car payments for the custodial parent or proof that you have provided groceries, clothing, diapers, etc., for the children.

If you are the party seeking child support, you may contact your local CSE to provide representation for you, or you may hire a private attorney. If you are the party obligated to pay child support, you may hire a private attorney to represent you or represent yourself. Court officials, such as judges and clerks of court, cannot give you legal advice about your rights and obligations, possible claims or defenses, or the likely outcome of your case.

The first payment is typically due on the first of the month after the judge signs an order for child support.

There are several possibilities if your case goes through CSE.

• In many cases, the judge will set up automatic deductions from your paycheck. If the money is not deducted, you are responsible for making the payments.
• You can make payments online using a credit or debit card or by setting up automatic bank drafts. Visit the ePayments site here to register for an account, or here for more information about online payments and statements.
• You can contact North Carolina Child Support Enforcement for more information about payment options or to make a payment at 1-877-361-5437, and can view additional contact information for the agency here.

If your case was not filed by CSE, a judge will instruct you on how to pay.

Family law judges hear domestic and child welfare matters and receive specialized training to increase their expertise. North Carolina district courts consolidate and assign a family's legal issues before a single district court judge or team of judges. This allows judges to become familiar with and better address each family's issues, and keeps families from having to recount their history for multiple judges at each hearing. Parent education programs also may be available. Learn more.

North Carolina’s Child Support Guidelines (find previous guidelines) set the amount of child support that should be paid depending on each family’s financial circumstances. Judges must order the amount of child support set out in the Guidelines unless applying the Guidelines would not meet or would exceed the reasonable needs of the child, or would otherwise be unjust or inappropriate.

There are online calculators that allow you to estimate the monthly child support in your case.

• Calculator if one parent has primary custody
• Calculator if the parents have joint custody
• Calculator if the parents have split custody

Having other children in your home or paying child support for other children not living with you are factors in calculating child support.

The Child Support Guidelines require a minimum child support order of $50 per month.

If you are represented by the local CSE agency, you should contact your caseworker. Otherwise, you can file a Motion for Order to Show Cause, requesting the court to hold the other party in contempt.

A judge has a number of enforcement options available to address a parent’s failure to pay child support as ordered. Depending upon the circumstances, a parent who fails to pay support as ordered may have wages withheld or be required to serve time in jail.

Child support orders can be modified after three years, or if there has been a “substantial change in circumstances.” A difference of 15% or more of the child support paid under an existing order and the amount of child support resulting from the application of the guidelines based on the parents’ current income and circumstances is presumed to be a substantial change in circumstance.

If you are represented by the local CSE agency, you should contact your caseworker. Otherwise, you can file for a modification using this form. The judge will hold a hearing on the motion to modify. You should be prepared to show documentation that justifies your request to modify the child support order.

If you lose your job, you may file a Motion to Modify. A judge will determine how your unemployment impacts the current order of support.

If you have a child support order and then discover that you are not the biological father of the child, you can file a Motion for Relief within one year of discovering that you are not the father.

In general, parents are not obligated to financially support a child once the child reaches the age of 18. Parents are required to support a child until the child turns 20 if the child has not yet graduated and remains in high school. In that case, child support will continue until the child graduates, stops attending school regularly, fails to make satisfactory academic progress, or reaches age 20, whichever happens first. Parents can also be required to support a child enrolled in a cooperative innovative high school (CIHS) program until the child reaches age 18 or completes four years in the program, whichever occurs later. You can see a list of CIHS programs here.

Parents can agree in a separation agreement or consent order, for instance, to support a child through college or to continue supporting a disabled child. Any valid agreement between the parents is binding.

If your child qualifies for support after age 18, you are not required to return to court to continue receiving child support.

In general, no. If you have a CSE case, you should not have to go to court when your child reaches age 18 and has graduated from high school.  If you do not have a CSE case and your child has reached the age of 18 and graduated from high school, you can file a Motion to Modify to terminate support.

Yes, if the child marries, joins the U.S. military, or is granted emancipation by a court before reaching the age of 18.

Yes. If arrears are owed after the child reaches the age of 18 and has graduated from high school, child support payments continue in the same amount until all arrears are paid.

When someone dies, some or all of the deceased person’s property may transfer directly to others because of legal arrangements made by the deceased person before death.  However, in many situations, a representative for the deceased person must be appointed by court to collect the deceased person’s assets, pay the deceased person’s valid debts, and distribute the deceased person’s property to the proper persons.

A “decedent” is a person who has died.  An “estate” is all of the money and other property owned by a person at death. Estates may be small or large and may or may not include land.

A “will” (also known as a “last will and testament”) is an instrument created during a person’s life that determines who inherits that person’s property after he or she dies. Wills are most commonly typed documents created by lawyers, but in some circumstances wills may be valid when handwritten (and in rare cases may be made through verbal directions). Some wills are not valid because they lack the legal requirements of a valid will. A will has no legal effect until it is probated by a court (usually the clerk of superior court).

The term “probate” has two primary meanings. Probate is another word for estate administration, which is sometimes called “the probate process.” Probate or probating the will also refers to the process by which a court determines that a “purported” will is actually the final will and testament of the decedent and is legally valid to pass title to property.

Estate administration is a process for handling a person’s assets and debts after that person’s death.  Some estates are administered by “full administration.”  Many small estates may be administered through simpler processes.  Unless the decedent set up complete alternatives to court-supervised estate administration prior to death, estate administration is handled through the courts, primarily in the office of the appropriate clerk of superior court.  In full administration, the clerk of superior court gives authority to a personal representative of the decedent who inventories the decedent’s assets, gives public notice to the decedent’s creditors, pays the valid debts of the decedent, and distributes the decedent’s remaining property to the person(s) who were named as beneficiaries in the decedent’s will, if there is one, or to the person(s) entitled by law if there is no will.

Assets including vehicles, bank accounts, stocks and bonds, furniture, and jewelry are typically, but not always, handled through the estate administration process. Assets that are handled through the estate administration process are called “probate assets.” “Non-probate assets” that may pass outside the process, may include:

• Property that is held with a “right of survivorship,” meaning that it becomes the property of the last owner living, or property that has a named beneficiary who is living. Such property may include life insurance policies, retirement accounts, joint bank accounts, and annuities.
• Land and houses generally are not administered through the probate estate unless the will provides otherwise or the sale of these assets is needed to pay estate debts.

The law of intestacy provides the rules for distributing property belonging to people who die without a valid will. Most people who write a will leave their property to their immediate family, so intestacy law generally distributes property in the same way. When a person dies without a will, the property may be divided between the surviving spouse and children (or spouse and parents if there are no children) depending on the value and type of property. If the person has children, grandchildren, great-grandchildren, etc., but no spouse, the property is divided among the children or descendants of deceased children. If the decedent has none of these relatives, assets generally are distributed to family members in the following order of priority: 1) parents; 2) siblings and the children, grandchildren, etc., of deceased siblings; 3) grandparents; 4) aunts and uncles and, if deceased, their descendants.

A trust is a legal relationship by which one person or entity holds title to property for the benefit of another person or entity. In most trust relationships, the terms of the trust are set out in a written document called a trust instrument. Trusts are set up for many purposes. Except for testamentary trusts, most trust instruments are not filed with a court. Testamentary trusts are trusts written into wills. Testamentary trusts often provide for property management of a child’s inheritance until the child reaches a certain age and sometimes also provide for children or adults with disabilities who may lose government need-based benefits if they own property in excess of certain amounts.

Executors, administrators, personal representatives, and trustees are all titles of “fiduciaries”. A fiduciary is someone in a position of trust and authority to manage property for the benefit of another. “Executors” are the fiduciaries appointed under a will and given authority by the court. “Administrators” are the fiduciaries appointed by the court when a person dies without a will. “Personal Representative” is a term used to refer to both executors and administrators. “Trustees” are the fiduciaries appointed under a trust.

These are the legal terms for persons who receive property from a decedent’s estate or through a trust or through a contract that distributes a decedent’s property at death. Technically, the words mean different things based on the source of the property: “legatees” and “devisees” are people who receive property through a will; “heirs” are people who receive property when there is no will; and “beneficiaries” are people who receive property through a trust or an account or policy where a beneficiary can be specifically named.

No. North Carolina law does not require a formal reading of the will.

After someone has died, the will may be filed with a clerk of court. A decedent’s will becomes a public record when it is filed, after the decedent’s death, with the clerk of court. Any person may view a public record or request a copy of a public record for a fee.

The elected Clerk of Superior Court in each county acts as the probate judge in North Carolina. Elected clerks and their assistant clerks hold most estate hearings and presides over most estate cases. If the validity of a will is challenged in a caveat proceeding, the caveat proceeding will be heard by a Superior Court judge.

Persons who wish to hire an attorney to assist with estate administration often do so at this point. Whether you are preparing to meet with your attorney or to administer the estate on your own, there are certain documents to gather and steps to take.

• Find the Will. Wills are often kept in safe places, such as safes, safe deposit boxes, or locked desk drawers. Wills are sometimes held by the decedent’s attorney. Prior to death, a decedent also may have deposited a will for “safe-keeping” with a clerk of court. Consider contacting the clerk of court in counties where the decedent formerly lived if no will has been found.
• Death Certificate. Formal proof of death is required at various steps in the probate process, and the standard proof is a certified death certificate.
• Locate and Identify Assets. To the extent possible, a person desiring to administer a decedent’s estate should take steps to locate and identify the decedent’s assets. Keep in mind, however, that a letter of authority from a clerk of court is often required to access information regarding a decedent’s assets.
• Contact the Clerk of Court. When you are ready to administer a decedent’s estate, contact the Clerk of Court in the appropriate North Carolina county.

The estate of a North Carolina resident may be administered in the county where he or she was domiciled at the time of death. If a decedent was not domiciled in North Carolina at the time of death, the estate may be administered in any North Carolina county in which the decedent left any property or assets or into which any property or assets belonging to the estate may have come. If a nonresident motorist died in any North Carolina county, the estate may be administered in any North Carolina county.

Letters testamentary and letters of administration are legal documents issued by the clerk of court that give a person authority to serve as the personal representative of the estate. These “letters” will often be requested by institutions such as banks or insurance companies during estate administration. There are generally two basic types of letters, based on whether the estate is testate (with a will) or intestate (without a will). Testate letters are called “Letters Testamentary” and are granted to an Executor. Intestate letters are called “Letters of Administration” and are granted to an Administrator.

To formally begin the estate administration process, you will need to visit the clerk of court in the appropriate county. Some clerks of court allow walk-ins, while others require an appointment. You should bring: (1) the will if there was one, (2) a certified death certificate, (3) an application and preliminary inventory of the decedent’s property; and (4) a $120 filing fee. Forms needed may be obtained from the clerk of court’s office or on this website. Filling out the preliminary inventory and application for letters will require a general knowledge of the decedent’s property and the ability to identify the heirs or devisees of the decedent.

Some persons by law are not qualified to serve as a personal representative of a decedent’s estate.  In addition, the law gives some persons priority rights to serve as a personal representative. If there is a valid will, an executor named in the will has the highest priority to receive letters. If the executor does not qualify, then a substitute or successor executor named in the will has the next highest priority. If the will does not name a substitute or successor executor or if the decedent did not leave a valid will, then those who may be granted letters are, in the following order of priority: (1) the surviving spouse, (2) anyone receiving property under the will, (3) anyone who would receive property if there was no will, (4) any next of kin, (5) creditors of the decedent, (6) anyone of good character living in the county.

Out-of-state executors generally must pay a bond to the court to protect creditors and heirs from potential losses. Administrators must pay a bond unless exceptions apply.

A summary of the procedures for executors, administrators, collectors by affidavit, and persons using summary administration is found here.

Yes. An estate may be reopened under certain circumstances, including the existence of newly discovered property.

No. Smaller estates may be administered by use of an Affidavit for Collection of Personal Property of Decedent. The collection by affidavit process is summarized here.  There is also a streamlined process for estates where the spouse will receive all the property, or where the estate only includes enough money to cover funeral and burial costs. There may be other small estate options available depending on the circumstances of each estate.

You may able to use the collection by affidavit process.  You may also pursue summary administration, which is a procedure that streamlines the estate administration process when the surviving spouse is the sole heir or devisee. This option is available whether or not the decedent had a will. You can find the necessary form for summary administration of estates with a will here and estates without a will here.

Guardianship is a legal relationship in which a person(s) or agency (the guardian) is appointed by the court to make decisions and act on behalf of a person who does not have adequate capacity to make such decisions involving the management of personal affairs, property, or both. A court process is required to create a guardianship. Additional information to help understand guardianship, including a video titled Understanding Guardianship, is available here.

A guardian is a surrogate decision maker and advocate for an individual (the ward) who has been adjudicated incompetent by the court. The guardian must allow the ward to participate as much as possible in the decisions affecting him or her. The guardian is required to preserve the opportunity for the ward to exercise the rights that are within his or her comprehension and judgment, allowing for the same possibility of error as a person who is not incompetent. The guardian must protect the ward’s right to make his or her own choices.

No. Under a power of attorney, an individual decides who will assist him or her with important decisions and the management of his or her own affairs and delegates that authority in a written document(s) without a court proceeding. In guardianship, the court (clerk of superior court) decides who will be responsible for managing a person’s affairs and/or property. The court could appoint a non-family member as a guardian. It is important to weigh all alternatives to guardianship prior to filing a petition with the court. Guardianship should only be considered when no other alternative is appropriate.

North Carolina law favors less restrictive alternatives to guardianship if possible. You can read more about these alternatives here. Some alternatives include:

• Durable Power of Attorney and Health Care Power of Attorney: An adult who is able to understand what he or she is signing at the time may be able to execute these documents, giving another person the authority to handle financial, medical, or other matters for him or her in the future. An attorney can help prepare these documents. Statutory short forms for powers of attorney are available here and here.
• Advance Directive for Natural Death (“Living Will”) and Advance Directive for Mental Health Treatment: Advance directives are legal documents that give instruction on what medical treatment a person would want or not want. Advance directive forms are available through the N.C. Secretary of State here. Advance directives may be filed with the North Carolina Secretary of State and information for this registry is available here.
• Representative Payee: Individuals entitled to receive certain state or federal benefits, who are determined to be unable to manage these benefits, may be assigned an individual or agency payee to receive and manage these funds for their benefit. Examples are Social Security income, supplemental security income, and veteran’s benefits.
• Bank Accounts: Joint bank accounts that require both signatures for withdrawals or that have automatic payment options can be set up to manage money.
• Special Needs Trust: This is a type of trust that holds money for the benefit of a person with a disability to help maintain eligibility of needs-based public benefits. An attorney can assist in setting up a special needs trust.
• Home Health Care: Home health care agencies can assist people with activities of daily living, like dressing, bathing, cooking, and cleaning.
• Support: People who may not be able to independently manage all details of their lives may be able to manage without a guardian if they have trusted family, social support and community support, for instance, help with budgeting or medication reminders.
• Supported Decision Making: For some individuals, guardianship can be avoided by developing a network of trusted individuals that can provide support by assisting with decision making.

A guardian is appointed for an adult if the court finds by clear, cogent and convincing evidence that a person alleged to be incompetent lacks sufficient capacity to manage his or her own affairs or to make or communicate important decisions about the person’s self, family, or property. The lack of capacity may be due to mental illness, intellectual or developmental disability, epilepsy, cerebral palsy, autism, inebriety, senility, disease, injury, or a similar cause or condition. Showing poor judgment or wastefulness is not necessarily enough to show that a person is incompetent.

A “ward” is an adult who has been adjudicated incompetent or an adult or minor for whom a guardian has been appointed by a court.

The petitioner is a person who files a petition with the court alleging that an adult lacks capacity to manage his or her affairs or to make and communicate important decisions about his or her self, family, and/or property and requesting that a guardian be appointed. The respondent is the adult who is alleged to be incompetent, and who will become a ward if the clerk determines that he or she is in fact incompetent.

The following principles have been recognized and incorporated by statute:

• Guardianship should be considered only when less intrusive alternatives are not appropriate and if it will give an individual a fuller capacity for exercising his or her rights.
• Guardianship should seek to preserve opportunities for the individual to exercise rights that are consistent with his or her capabilities, allowing for the possibility of error to the same degree as is allowed to persons who are not incompetent.
• A person under guardianship should be involved in all decision making consistent with his or her capabilities.

An adult ward may lose many of the rights that adults otherwise have, though it is possible for a ward to retain certain rights and privileges through a limited guardianship. The guardian may have the authority to decide where and with whom the ward lives, what medical treatment the ward receives, how to handle the ward’s money and property, how to resolve legal claims or court cases in which the ward is involved, and whether to enter into contracts on the ward’s behalf. A ward may lose the privilege to drive, the right to file a court case independently, or the right to enter into contracts, among other rights. A ward loses the right to serve on a jury, possess or purchase firearms, and execute powers of attorney. A ward who wishes to keep his or her driving privilege can request a hearing with the Department of Motor Vehicles and show evidence that he or she should be permitted to drive.

Incompetent adults have the right to participate in decisions affecting them and make decisions to the extent they are able to do so. Incompetent adults have the right to vote and the right to marry. Under some circumstances, an incompetent adult may be able to make a will. Powers of attorney executed after a person is adjudicated incompetent and while under a guardianship are not valid. Incompetent adults have the right to file motions or appeals in their guardianship cases and have the right to be represented by an attorney or guardian ad litem in these proceedings.

In a limited guardianship, an adult ward retains some rights that would otherwise be lost in guardianship. North Carolina law encourages clerks to consider limited guardianships tailored to the needs of the incompetent person.

Guardianships can be classified by the powers of the guardian. In the clerk of superior court’s order appointing a guardian(s), the powers and duties of the guardian(s) are outlined. Powers and duties of Guardians of the Person are outlined in G.S. §35A-1241(a). Powers and duties of Guardians of the Estate are outlined in G.S. §35A-1251 and 1253. General Guardians have the powers of both a Guardian of the Person and a Guardian of the Estate. Each of these types of guardianships should be limited to meet the specific needs of the ward, as appropriate.

Competence and Guardianship proceedings are handled by the clerk of superior court or an assistant clerk of superior court, who presides over the hearings and makes all decisions in the case. The respondent or guardian ad litem may request a jury to decide the issue of competence, but if the respondent is determined to be incompetent, only the clerk can decide who will serve as guardian. Decisions on competence and guardianship can be appealed to superior court.

Every North Carolina county has a Department of Social Services, providing Adult Protective Services, which investigates allegations of abuse, self and caretaker neglect, and exploitation of adults who are disabled, meaning they cannot complete daily activities or handle their affairs or protect interests and are unable or unwilling to obtain essential services themselves. North Carolina law requires any person having reasonable cause to believe that a disabled adult is in need of protective services to report such information. Contact information for county Departments of Social Services and for reporting can be found here.

If a person is a danger to him- or herself or others due to mental illness or substance abuse, a petition can be filed with the magistrate in the person’s county of residence for involuntary commitment to a medical facility.

Upon the filing of a verified petition for adjudication of incompetence, a motion may be filed requesting the appointment of an interim guardian. See below for more information.

Any person, including a relative, friend, medical provider, or any State or local human services agency, through an authorized representative, can file a verified petition with the court. The petitioner is responsible for presenting evidence at the hearing to prove by clear, cogent and convincing evidence that the respondent is incompetent, which may include subpoenaing witnesses to testify.

Yes. A petition for adjudication of incompetence may be filed when a minor is at least 17 ½ years old.

Petitions for adjudication of incompetence are filed in the special proceedings division in the clerk of superior court’s office. The clerk of superior court can give you a copy of the petition, or you can find it online here. The petition must be verified under oath in front of a clerk or a notary public. A party may file a petition with the clerk of superior court in the county where the respondent resides or is domiciled or is an inpatient in a treatment facility as defined in G.S. 122C-3(14), which includes group homes, halfway houses, and other community-based residential facilities. If the county or residence cannot be determined, the petition may be filed in the county where the respondent is present. Note: In order for a court to have jurisdiction in an incompetency proceeding, the court must have subject matter jurisdiction pursuant to N.C. G.S. § 35B.

Basic identifying information about the respondent is necessary to complete a petition. Additional information required includes where the respondent has lived for the past 12 months; facts tending to show that the respondent is incompetent and reasons to show why the adjudication of incompetence is sought; names and contact information for the respondent’s next of kin and other persons known to have an interest in the proceeding; information about the respondent’s assets, liabilities, and income; and information about the respondent’s ability to manage various aspects of daily life. On the court petition form, a specific person or an agency may be recommended as guardian. However, there is no requirement to recommend a guardian. Upon adjudication, if a qualified guardian is not available to serve, the clerk may appoint a corporation authorized to serve as a guardian by its charter or a county Department of Social Services.

There is a $120 filing fee, as well as a $30 fee for the sheriff to serve the respondent with the petition. The clerk of superior court determines who is responsible for payment of fees and costs. The filing fee and sheriff’s service of process fee may be required at the time of filing. If the respondent is adjudicated incompetent and is indigent, meaning that he or she is unable to pay court fees and costs, then the clerk of superior court can waive the court costs. However, if the clerk finds that the petitioner did not have reasonable grounds to bring the case, the petitioner may be required to pay all costs, including fees for the guardian ad litem and any multidisciplinary evaluation that is ordered.

The respondent must be served personally by sheriff. At the time of filing, the clerk will appoint a guardian ad litem, who must also be served pursuant to G.S. 1A-1, Rule 4, Rules of Civil Procedure. The petitioner is responsible for mailing via first class mail a copy of the petition and notice of hearing to the respondent’s next of kin who are listed in the petition and any other persons the clerk may designate within 5 days after filing the petition. The petitioner must certify that this service was completed and may use this form.

No. Parties may hire their own attorneys. Court officials, such as judges and clerks of court, cannot provide parties with legal advice about their rights and obligations or the likely outcome of a case. A petitioner representing his or herself in court will be held to the same rules of civil procedure and evidence as a licensed attorney.

The hearing will be held between 10 and 30 days after the respondent is personally served with the petition, unless the clerk extends the time for good cause, for preparation of a multidisciplinary evaluation, or for the completion of a mediation.

The petitioner or guardian ad litem attorney may file a verified motion for the appointment of an interim guardian. The petitioner or guardian ad litem attorney may file the motion at the time the petition is filed using the petition form here or after the filing of the petition using this form. The hearing will be held as soon as possible, but no later than 15 days after the respondent has been served with the motion and notice of hearing. A clerk can also appoint an interim guardian on his or her own motion at the hearing on the petition for adjudication of incompetence if the clerk finds this to be in the respondent’s best interest.

The clerk of superior court or an assistant clerk will hold a hearing to decide whether an interim guardian should be appointed and what the interim guardian’s responsibilities should be. If the clerk appoints an interim guardian, the clerk’s order will limit the interim guardian’s powers and duties based on the immediate needs of the respondent. The interim guardianship terminates upon the occurrence of one of the following: (1) on a date specified by the clerk, (2) at the expiration of 45 days, (3) when a guardian is appointed, or (4) when a case is dismissed. For good cause, the clerk may extend the interim guardianship for an additional 45 days. An interim guardian with authority related to the respondent’s estate is required to post a bond in an amount determined by the clerk and file an account with the clerk.

When a petition is filed, the clerk of court will appoint an attorney as guardian ad litem (GAL) to represent the respondent in the hearing. The guardian ad litem will visit the respondent as soon as possible and try to determine the respondent’s wishes. The guardian ad litem is responsible for presenting the respondent’s wishes to the clerk during the hearing, and the guardian ad litem may also make a recommendation to the clerk about the respondent’s best interests.

Yes. The respondent can choose to hire his or her own attorney. If the respondent hires an attorney, the clerk may release the guardian ad litem.

A Multidisciplinary Evaluation (MDE) is an evaluation that the clerk can order, if requested in writing by a party or on the clerk’s own initiative, in initial incompetency or restoration to competency proceedings. This can include medical, psychological, social work, education, vocational rehabilitation, and occupational therapy evaluations of the respondent.

At the hearing, the petitioner and respondent are allowed to present testimony and documentary evidence, to subpoena witnesses and the production of documents, and to examine and cross-examine witnesses. The petitioner is responsible for proving that the respondent is incompetent by clear, cogent and convincing evidence. The North Carolina Rules of Civil Procedure and Rules of Evidence apply to these proceedings.

Yes. Anyone who wishes to be considered as guardian should be present at the hearing. The clerk may ask questions of any potential guardian(s) to determine who is most suitable to serve as guardian(s).

The clerk may announce his or her decision at the end of the hearing, may order a multidisciplinary evaluation to be completed before making a decision, or may make a decision after the hearing.

The clerk makes this decision based on the best interests of the ward. The order of priority for appointment that a clerk must consider is: (1) an individual recommended under the will of the deceased parent of an unmarried child adjudicated incompetent, (2) an individual, (3) a corporation, and (4) a disinterested public agent, such as a county Department of Social Services.

A party may appeal in writing within 10 days of the clerk’s decision. There is not a court form available for this. If a party appeals the decision on the issue of competence, there will be a new hearing before a superior court judge. If a party appeals the decision of choice of guardian, there will be a review hearing before a superior court judge. There is no court fee or bond assessed to file a notice of appeal. If the clerk of court appoints a guardian, the guardianship will stay in place during the appeal, unless the court issues a stay of the order.

Any interested person, including the ward, the guardian, or a third party, may file a motion in the cause for restoration to competency.

A verified motion in the cause for restoration to competency is filed with the clerk of superior court in the special proceedings division in the county where the guardianship case is located. The Motion for Restoration to Competency form can be found here and the accompanying Notice of Hearing here. These documents must be served either by the sheriff, certified mail, or other means in accordance with provisions of G.S. 1A-1, Rule 4 on the guardian, the ward, and any other party to the original case, such as the person who filed to have the ward adjudicated incompetent.

The ward is entitled to be represented by counsel or guardian ad litem attorney. Upon motion of a party, or upon the clerk’s own motion, a multi-disciplinary evaluation may be ordered. The respondent, his or her counsel or guardian ad litem may request a jury trial. A hearing will be scheduled, where the clerk of court or jury, if requested, will decide the case.

The person who filed the motion must prove by a preponderance of the evidence that the ward is now able to manage his or her own affairs and to make and communicate important decisions about him or herself and his or her family and property. All of the parties, including the ward and the guardian, will have the opportunity to testify, call witnesses, and present documentary evidence.

The clerk may fully restore the ward’s competency or deny the motion and leave the guardianship in place. The clerk may also limit the guardianship by granting the ward new rights and privileges while keeping the guardianship in place.

When a person’s competency is restored, he or she is able to manage his or her own affairs and exercise all rights as if he or she were never adjudicated incompetent and will no longer have a guardian. However, a person whose competence is restored does not automatically regain the right to purchase, possess, or transfer a firearm.

The clerk’s decision can be appealed in writing within 10 days after the written order is entered for a new hearing before a superior court judge. There is no court form available to file a notice of appeal. The guardianship will stay in place pending the appeal.

A guardian may be appointed for a minor under certain circumstances. Minors, because they are legally incompetent to transact business or give consent for most purposes, need responsible, accountable adults to be responsible for their personal welfare, for personal decision-making, and to handle property or benefits to which they are entitled.

A court may appoint a guardian of the estate for a minor (under age 18), pursuant to Art. 6 in G.S. 35A, who is to receive property, such as an inheritance, life insurance proceeds, or an award from a lawsuit. A court may appoint a guardian of the person or a general guardian if both of the child’s parents are either deceased or have had their parental rights terminated in a court proceeding.

An application for the appointment of a minor may be initiated by completing this form under oath and filing it in the estates division with the clerk of superior court in the county where the child lives. Basic identifying information about the child is required as well as information about the child’s parents and others with an interest in the guardianship, such as relatives or custodians, and information about the child’s assets.

The clerk of court will set a date for a hearing on the guardianship once the application is filed. Copies of the application and a notice of hearing must be served on any parent, guardian or legal custodian of the minor other than the applicant, and on any other person the clerk may direct, including the child. Parties may waive their right to notice of the hearing.

Possibly. The clerk of court may choose to appoint a guardian ad litem, depending on the circumstances. The guardian ad litem will visit the child, learn about the family, and make a recommendation to the clerk.

The hearing may be held in a courtroom, a conference room, or an office. The clerk of superior court or an assistant clerk will conduct the hearing. The applicant will be allowed to testify under oath and present evidence, including witnesses and documents. Other interested parties, such as family members who dispute the guardianship, may be allowed to testify and present evidence. If a guardian ad litem was appointed, he or she will make a recommendation to the clerk.

Notice of appeal must be filed within 10 days of entry of the clerk’s written order. An appeal hearing is not a new trial, but allows a superior court judge to review whether the record shows any error by the clerk.

The appointed guardian must take an oath to uphold his or her duties. Guardians who will have control over the ward’s assets and property, and some non-resident guardians, must file a bond approved by the clerk before receiving their authority. Certain individuals may be disqualified by statute to serve.

If the clerk of court does not provide for more limited duties through a limited guardianship, a guardian of the person has broad responsibilities for the care and custody, and maintenance of the ward. Those responsibilities may include providing for the ward’s everyday needs, establishing the ward’s home, maintaining the ward’s personal property such as clothing or vehicles, and arranging for the ward’s education, employment or rehabilitation. The guardian of the person may consent to medical or psychological treatment for the ward, unless the ward previously appointed someone else to make these decisions through a health care power of attorney. The clerk shall consider whether a limited guardianship is appropriate. You can view all the powers and duties of a guardian of the person here. You can find additional information prepared by the North Carolina Administrative Office of the Courts here.

All public guardians are required to file status reports under oath or affirmation with the court, and the clerk of court may require these reports from all guardians. Status reports are not available to the general public. Information required in status reports can be viewed here.

A guardian of the estate or general guardian must file an inventory of the ward’s assets within 3 months after qualification and must file an annual account each year regarding the status of the ward’s property and money received and paid.

A general guardian has all the duties and accounting requirements of both a guardian of the person and a guardian of the estate.

A guardian of the estate or general guardian must file a verified petition with the court for approval to sell real property. This is a complicated process that requires court approval. An attorney can assist with this process.

Any person can file a motion to modify a guardianship, including a motion to remove a guardian. The clerk will hold a hearing on the motion and decide if any changes are in the ward’s best interests. The clerk can remove the guardian if he or she is unsuitable, for instance, if the guardian wastes or mismanages the ward’s property or takes it for the guardian’s own use, does not file required accountings, or neglects to care for the ward. You can find a full list of circumstances that require removal here.

A guardian can file a motion to modify asking to resign as guardian, and the court can appoint a new guardian.

Yes. A party can ask the clerk to change a guardian’s duties or a ward’s rights by filing a motion to modify.

A party may request the transfer of the guardianship to the county where the ward now lives, or the court may transfer the guardianship on its own initiative.

Yes. You may wish to register a guardianship if the ward spends some of his or her time or receives medical treatment in a state other than the one where the guardianship was created. If you currently have guardianship in another state and wish to register that guardianship in North Carolina, you can do so using this form.

Yes. Procedures for transferring adult guardianships to or from North Carolina are governed under G.S. 35B-30 and 35B-31. To initiate a transfer of guardianship from North Carolina to another state, you must first petition North Carolina for a transfer and may use this form. To transfer guardianship from another state to North Carolina, you must first request a provisional order of transfer from the other state. Once you have received that order, you can petition North Carolina to accept the transfer of guardianship using this form.

A lawsuit is a claim or dispute brought to a court of law to resolve.

Criminal cases deal with violations of the criminal law, such as assaults or theft. Criminal cases are usually brought by law enforcement and are managed by a prosecutor, an attorney who represents the government. A person found guilty in a criminal case faces consequences such as jail time, probation, or fines. See the Criminal Cases Help Topic for more information. On the other hand, civil cases deal with a wide variety of private disputes, from breach of contract to child custody. In civil cases, one party may have harmed or failed to abide by its obligations to another, or two parties may have a dispute for the court to resolve. Civil cases can result in an award of money or in a court order to enforce or protect the rights of a party.  

North Carolina’s trial court system has two divisions: District Court and Superior Court. Both divisions are generally located in the same courthouse in each county, but have different judges. The Superior Court division handles civil cases involving a claim for more than $25,000, as well as felony criminal cases. The District Court division handles civil cases involving a claim for $25,000 or less, all family and juvenile cases, misdemeanor criminal cases, and infractions such as traffic tickets.

A “plaintiff” is a person who files a lawsuit. A “defendant” is a person that a lawsuit is filed against. One lawsuit can have multiple plaintiffs and multiple defendants.

A “complaint” is the document a plaintiff files to begin a lawsuit. The complaint states what the plaintiff claims the defendant has done and the remedy that the plaintiff is requesting. Typically, the defendant has 30 days to respond by filing an “answer.” An answer includes the defendant’s responses to the plaintiff’s allegations and any defenses. If the defendant also has a claim against the plaintiff – for instance, if the defendant believes that the plaintiff is actually the person who owes money – the defendant may state his or her own claims in a portion of the answer called a “counterclaim.”

This depends on the type of case, the willingness of both parties to settle the dispute, and the complexity of the evidence and legal issues involved. Many cases filed in small claims court are resolved on the first court date.

No. Very few civil cases go to trial. Most cases are settled before trial, either through an agreement negotiated by the parties’ attorneys, or through mediation or arbitration. Arbitration is an alternative method of resolving a dispute through an informal legal proceeding that is required in many district court cases. Mediation is a guided conversation that can help parties settle legal disputes themselves. See the Arbitration and Mediation Help Topic for more information.

No. Parties may have the right to request a jury trial, or the court may hold a “bench trial,” meaning that a judge hears the evidence and decides the case. In some types of cases, such as child support and child custody, all trials are held before a judge.

Most people considering a lawsuit begin by contacting an attorney to discuss the case. An attorney can advise you on the possible outcomes of your case and the amount of time and costs involved. See the Find an Attorney Help Topic for more information.

In some cases, you may wish to file your lawsuit on your own in small claims court. The limit on the amount of money a person can request in small claims court varies from $5,000 to $10,000, depending on the county. See the Small Claims Court Help Topic for more information.

eCourts Guide & File is available to help users prepare court documents online to file for Small Claims: Money Owed, Repossession of Personal Property.

People can represent themselves (known as proceeding “pro se”), but this can be difficult, especially in complex cases. If you choose to represent yourself, you will be held to the same rules of evidence and procedure as a licensed attorney. Court officials, such as judges and clerks of court, cannot give you legal advice about your rights and obligations, possible claims or defenses, or the likely outcome of your case.

Companies are legally required to hire an attorney to represent them. There is an exception for small claims court and appeals from small claims to District Court; in these cases, companies can be represented by a non-attorney agent such as an owner or employee.

In general, yes. If you are unable to pay the costs of court, you can ask to file as an “indigent,” meaning that you are not required to pay court fees in advance. You can find the necessary form here.

eCourts Guide & File is available to help users prepare court documents online to file for Petition to Proceed as an Indigent.

The amount of time you have to file your lawsuit (known as the “statute of limitations”) depends on the type of case. An attorney can give you more information about the limit in your specific case. You can view the law on statutes of limitations in general here and in cases involving real property (land) here.

Cases for money damages are divided depending on the amount of money involved. Small claims court handles cases where the plaintiff requests less than $5,000 or $10,000, depending on the county’s specific rules. District Court handles the remaining cases where the plaintiff requests $25,000 or less. Superior Court handles cases where the plaintiff requests more than $25,000. All family court cases are heard in District Court. All cases challenging state laws are heard in Superior Court.

In which county to file your suit depends on a number of factors, including where the dispute arose and where the parties reside. In small claims court, the case must be brought in the county where the defendant lives. There are specific rules for cases concerning land or involving businesses. You can find more information about where cases should be filed here.

In general, there are not standard forms in North Carolina to file a lawsuit. Exceptions include complaints for eviction, small claims cases, and Domestic Violence Protective Orders (see the relevant Help Topics).

eCourts Guide & File is available to help users prepare court documents online to file for certain case types.

The plaintiff is responsible for ensuring that a copy of the complaint is served on the defendant. If you have an attorney, your attorney can handle this for you. In general, service is carried out either by paying the sheriff a $30 fee to personally serve the defendant, by mailing a copy of the summons and complaint to the defendant by certified mail, return receipt requested, or by some other method authorized under Rule 4 of the North Carolina Rules of Civil Procedure. If the defendant cannot be found, the plaintiff may be able to serve him or her through publication in a newspaper, but specific requirements apply. The plaintiff must file with the court proof that the defendant has been served.

Most lawsuits are not automatically assigned a trial date, unless your case is on appeal from small claims court. Instead, a plaintiff or defendant who wants the case to be heard must arrange a date with the other party and the Trial Court Coordinator and file a Notice of Hearing. A copy of the Notice of Hearing must be served on the other party as authorized by Rule 5 of the North Carolina Rules of Civil Procedure.

You should immediately contact a lawyer. You will typically need to file an answer to the plaintiff’s complaint within 30 days. Failure to file your answer in the required time period could result in a judgment being entered against you by default. See the Find an Attorney Help Topic for information about how to find an attorney to represent you in your case.

Lawsuits are civil, not criminal, and will not appear on your criminal record. However, lawsuits are public record. Some types of cases may appear in some background or credit checks, and an unpaid judgment on record with the court will be reported to credit bureaus.

In general, yes. Except in juvenile, adoption, involuntary commitment and some other proceedings wherein cases or certain court filings are confidential by statute, documents filed in court cases are generally public record. Sensitive or confidential documents may be kept “under seal”, upon request by a party, so that only authorized people can see them. In general, the judge has the authority to decide whether or not to seal the documents.

Some counties post their civil court calendars here. If you are not able to find your court date, you can contact the Clerk of Superior Court’s Office in the county where the case is being handled.

A continuance is a postponement of a case or of arguments on a specific issue until a later court date.

This depends on the circumstances. If you miss a trial date, the case could be dismissed (if you are the plaintiff) or heard without you (if you are the defendant). If you have an attorney, your attorney will let you know if there are court dates you do not need to attend, for instance, because the case is scheduled for legal arguments that your attorney will handle for you. If you are unable to attend a court date, you should immediately contact your attorney. With advance notice, you can file a motion to continue the case. A party should review the county court’s local rules prior to filing a motion to continue.

If you violate or choose to not obey a court order, you can be held in contempt of court. Penalties for contempt of court can include jail time and fines. Before you can be arrested, you will receive notice of a hearing (through a Motion for Order to Show Cause, Motion for Contempt, or other formal notice) stating that the other party plans to ask the judge to hold you in contempt of court. You will have the opportunity to present a defense, and you can request a court-appointed attorney if you cannot afford to hire an attorney.

Discovery is a process in lawsuits that allows parties to legally demand documents and information related to the lawsuit from each other in advance of a trial. Discovery allows the parties to learn more about the facts of the case and expected witness testimony and provides evidence that can be used in trial. Interrogatories, requests for production of documents, requests for admission, and depositions are all forms of discovery. You can view the rules for discovery here. Note that criminal cases have a different process for discovery.

Once the complaint has been filed, either party may serve discovery requests on the other party together with or after service of the summons and complaint without need for permission from the judge.

No. Discovery happens in cases in which a party or, typically, a party’s attorney, chooses to send discovery requests to the other side. Discovery is often expensive and may not be necessary in some cases, but complex cases typically involve a period of pre-trial discovery.

A deposition is a formal questioning of a party or witness by the attorney for the other side. Depositions are sworn testimony, typically taken in person with attorneys for both sides and a court reporter present. Depositions usually happen in an attorney’s office or neutral conference room. A party that wants to take a deposition must send notice to the other side. Witnesses can be required to attend through a subpoena.

If a party fails to respond to interrogatories, requests for production, or questions in a deposition, the other party can ask the court for an “order to compel”.  Failure to comply with an order to compel may result in sanctions or payment of attorney’s fees related to obtaining the order.

A judgment is a court’s decision about the parties’ rights and obligations in a case, including the amount of money one party must pay the other.

Yes. Parties can sign a “consent judgment.” Once a judge also signs the agreement, this becomes a court order.

This depends upon the type of case. There is no automatic right to attorneys’ fees in a civil case. Your lawyer can explain whether you can request attorneys’ fees in your case.

Many people reach an agreement about the terms of payment after the judge or jury decides how much money one party must pay the other. If there is no agreement, the winning party can begin the collections process. The clerk of court will record the judgment, and interest will begin to accrue if the judgment is not paid.

• Before a writ of execution can be issued by the clerk of superior court, a Notice of Right to Have Exemptions Designated must be served on certain defendants (judgment debtors), along with a Motion to Claim Exempt Property. This allows a person to protect certain basic property from being seized and sold to pay the judgment. The other party has 20 days after he or she is served to file the Motion to Claim Exempt Property with the court or request a hearing before the clerk of superior court. The clerk of superior court determines whether a defendant is entitled to claim statutory exemptions.
  • eCourts Guide & File is available to help users prepare court documents online to file for Motion to Claim Exempt Property.
• After a Motion to Claim Exempt Property is filed, a plaintiff has 10 days to object to property claimed as exempt. A hearing on any objections is heard in front of a judge, who determines what property is exempt. Once the time period has elapsed allowing an eligible judgment debtor to claim property as exempt, the plaintiff (judgment creditor) may request the clerk of superior court to issue a writ of execution for non-exempt property, which allows the sheriff to collect and sell property from the other party to pay the judgment.

The person required to pay a judgment can pay the clerk of court to ensure that the court has a record of the payment. Paying the other party is also an option. A party who receives payment directly from the other party should file a Certificate of Payment with the court as proof that the judgment was paid.

If you are not eligible to claim or if you fail to claim statutory exemptions, the plaintiff may request that the clerk of superior court issue a writ of execution, allowing the local sheriff to seize and sell non-exempt property to pay the judgment. You can still claim limited constitutional exemptions using this form. However, constitutional exemptions only allow $1000 in real property (such as land or homes) and $500 in personal property (such as vehicles, furniture, appliances, and other items) to be protected.  Eligible parties who fail to claim statutory exemptions lose the right to protect the additional property provided for by statute.

An attorney can assist you in filling out the Motion to Claim Exempt Property. See the Find an Attorney Help Topic for a list of organizations that provide free legal services to people who are unable to afford an attorney.

eCourts Guide & File is available to help users prepare court documents online to file for Motion to Claim Exempt Property.

In general, no, you cannot be arrested for failing to pay a money judgment ordered by a court. Exceptions include criminal court fees that you must pay through probation and child support or other family court orders.

No, North Carolina does not allow a winning party to take money to pay the judgment out of the other party’s wages, except in child support cases.

A supplemental proceeding is a method of enforcing a money judgment that a judgment creditor has not been able to satisfy through execution.

In some limited cases, you can file a notice of appeal and request a new trial. For instance, cases first heard in small claims court can be appealed to District Court, and some cases first heard by clerks of court can be appealed to be heard by a judge. Once a non-criminal case is decided by a district or superior court judge, a new trial is generally not an option and appeals can be filed only to the North Carolina Court of Appeals, and perhaps to the Supreme Court of North Carolina.

You can begin the process by filing a notice of appeal with the trial court within 30 days of the trial court’s final order. A temporary order before the case is finished cannot be appealed. There is not a standard form for the notice of appeal. It may be necessary to hire an attorney to represent you in an appeal, because successfully appealing depends on following specific rules and making the correct legal arguments. You can view North Carolina’s Rules of Appellate Procedure.