How Criminal Charges Affect Divorce and Custody

Family Law Cases and DWI

criminal charges affect divorce

Driving While Intoxicated (DWI) or Boating While Intoxicated (BWI) in NC

One thing many people might not understand about a Driving While Intoxicated (DWI) charge – and subsequently a Boating While Intoxicated (BWI) charge – is the effect it can have on their child custody arrangement. 

DWI penalties are strict and include a driver license suspension or revocation and even potential jail time. A DWI can also end up costing you a lot of money. 

To learn more about DWI sentencing, read this blog.

A BWI is handled in the same manner as a DWI, though it is a distinct charge with different penalties, but no less severe or expensive. Though a BWI conviction alone won’t suspend an NC driver’s license, it could possibly suspend if licensed in another state depending on their laws. A BWI is just as serious as a DWI, though you may not think of it as such. 

According to NC law, a person can be convicted of a BUI for operating a vessel while under the influence of an impairing substance and having a BAC of 0.08 or more at any relevant time after boating. A BWI is not limited to motorized boats. G.S. 75A-10 states that a person cannot manipulate any water skis, surfboards, non-motorized vessel, or similar device while under the influence of an impairing substance.

Will I Lose Custody if I’m Charged with a DWI or BWI?

A DWI or BWI charge can have a significant impact on your custody case. A vindictive ex may use it to attempt to modify your custody provisions or argue that you are a danger to the children. Civil Courts could order you to engage in treatment or alcohol monitoring beyond what the criminal courts may order, which can be costly and could temporarily modify your visitation privileges. 

If you are convicted of driving while impaired with a BAC of .15 or greater, you will lose all driving privileges for 45 days, and will be limited to an interlock privilege for a year, during which time you will have to have an interlock device installed on your vehicle, and under which you can only drive for work purposes, meaning to and from work. There is no exception for parents who need to get their child to school or a doctor’s visit, or even to pick up his or her child for a custody exchange. As you can imagine, this could undoubtedly lead to significant conflict between spouses, especially those who are struggling to co-parent in the first place.

Additionally, if a minor is in the car at the time of the traffic stop and the driver is under the influence, officers often add the charge of misdemeanor child abuse in addition to the DWI charge. It doesn’t matter whether you blow a .08 or a .44 BAC, you will automatically be facing active jail time.

If you have been charged with a DWI or BWI, contact our team of experienced attorneys as soon as possible. We understand the legal principles surrounding arrest and prosecution of DWI and BWI cases, and we will work with you to pursue an appropriate defense or dismissal of your case based on the facts and circumstances of your case.

Incarceration in NC Family Law Cases

Does a Parent in Prison Have to Pay Child Support?

Child support is tricky because under the NC guidelines “In compliance with 45 C.F.R. § 302.56(c)(3), incarceration may not be treated as voluntary unemployment in establishing or modifying a child support order.”

If the parent obligated to pay child support is incarcerated, and is not on work release, and does not have any assets or income to pay the ordered child support, there may be little to do until or unless the noncustodial parent is released. In addition, either party has the right to request a review of the child support order if the noncustodial parent is incarcerated for more than 180 days.

For incarcerated parents in NC, all measures should be taken, when possible, to continue to provide child support payments to look out for the welfare of the child. If continuing payments is not a viable option for that parent (non-custodial), a parent cannot pay child support due to incarceration, there may be options available, including modifying child support orders.

Options available to the incarcerated parent:

  • Reduce child support orders during incarceration
  • Suspend child support orders during incarceration

Options available to the non-incarcerated parent to pursue continued payment:

  • Wages from prison work release program
  • Rental income
  • Disability or retirement benefits
  • Money earned from selling property or assets
  • Money from selling investments including bonds or stocks
  • Dividend interest earned from stock or bond investments

These decisions are left to the judge, and only a judge will be able to change or modify a child support order. If you want more information about modifying support or custody orders, check out Missy’s video.

Can I obtain a divorce or legal separation while my spouse is serving jail time?

Sometimes a spouse who becomes incarcerated can make married life challenging. Due to upcoming or ongoing incarceration, one or both parties may decide to move on from the marriage.You may be worried that an incarcerated spouse will disrupt the divroce process, however the process is still very much the same. 

You must still meet the same criteria for beginning the divorce proceedings

  1. Have lived separate and apart, with no intention of resuming the marriage, for at least one (1) year and one (1) day; and 
  2. You must have lived in NC for at least six (6) months prior to filing. 

How is a Family Law Complaint Served to Someone Who is Incarcerated?

You will have to serve the other party with a copy of the Summons and Complaint. This may be the most challenging part of the process. In order to properly serve the opposing party, you may need to contact the prison to determine if there are special needs to be met to have your spouse served in jail. Most often, mailing or having the Sheriff’s Department deliver the Summons and Complaint will be sufficient.

Your spouse will have thirty (30) days to respond to the Complaint. 

Contact SeiferFlatow

If you have been charged with a DWI or BWI, contact our team of experienced attorneys as soon as possible. If you are looking to divorce or separate from your incarcerated spouse and would like to learn more about your options to move forward, our family law team is here for you. Give us a call at 704-512-0606 or contact us on our website.