Family and Domestic Law in North Carolina
One of the most harrowing and difficult experiences in a person's life can come about due to domestic discord. Whether it be a simple separation, a child custody issue, or a complex equitable distribution case, our trained staff and attorneys are ready and able to take on your family law case. The topics below provide a brief overview of North Carolina domestic law. Should you find yourself facing in need of a domestic attorney, we hope you will give our office a call to set up a consultation.
Divorce Attorney & Mediation Serving Winston-Salem, NC
Although people generally enter into a marriage with the best of intentions, for various reasons the bonds of matrimony in some situations fall apart and people decide to go separate ways. The process for divorce in North Carolina is unique and certain rules will likely apply to your case.
There a few rules a person must meet in order to be eligible for a divorce in North Carolina. They are:
- Plaintiff (person who brings the action) has been a North Carolina resident for at least the last six (6) months;
- Plaintiff has lived separate and apart from the Defendant (Plaintiff's spouse that Plaintiff is seeking a divorce from) for at least one year;
Although divorce seems straight forward, there are numerous issues our attorneys and staff can help address. Some issues that will be addressed are:
- Are you pursuing a claim for Equitable Distribution? A divorce terminates all rights to Equitable Distribution not then pending at the time of the divorce.
- Are you pursuing a claim for Post Separation Support and/or Alimony? A divorce terminates all rights to Post Separation Support and/or Alimony not then pending at the time of the divorce.
- Do you want to resume use of a maiden name?
- Do you have a Separation Agreement (see below) that you would like to incorporate into a divorce decree/order?
- How is your spouse going to be served with the divorce complaint?
- What qualifies as “separate and apart?”
If you are considering pursuing a divorce action, please do not hesitate in contacting our office.
“An order for custody of a minor child entered pursuant to this section shall award the custody of such child to such person, agency, organization or institution as will best promote the interest and welfare of the child.” N.C.G.S. § 50-13.2(a)
If only it could be this easy! Although the child custody statute seems fairly innocuous on its face, the process of getting to the “best interest of the child” can be incredibly arduous, emotionally draining, and complex.
There are various considerations our trained attorneys will discuss with you when you come in for a custody consult. Each case is very different and fact specific. Some of the initial questions our attorneys will have for you are: (note for ease of reading, the word child is used, however, these questions apply with equal force to children as well)
- Where do you live?
- Where does the parent of your child live?
- What is your current living arrangement?
- Have you separated from your child's parent?
- Are you currently exercising an informal exchange schedule?
- Have you signed or agreed to any separation or custody agreement?
- How old is your child?
- Is your child currently in school?
- Does your child have any special needs, medical diagnoses, or other mental or physical concerns?
- Is there a history of domestic violence?
- Do you or your child's parent have other children?
- What is your desired outcome?
Beyond those initial questions, the attorney will want to hear details of your relationship with your child's parent, and the details of your child's life, thus far. The court system is designed with co-parenting in mind. Upon a filing of a custody action, the parties must attend a court ordered mediation program. A judge may order to parties to return to mediation. Lawyers will often attempt to negotiate a consent order outlining a custody schedule, along with considerations such as holidays, schooling, and extracurricular activities. All of this is done with a couple goals in mind. One, upon having a child with someone, you have made an eighteen (18) year commitment! If at all possible, it is better to get along for the sake of the child with a common goal of raising a productive member of society. Two, the process of a custody hearing is lengthy and time consuming, often involves making the private details of a persons' life public, and can be incredibly expensive. Ultimately, if there is a full custody hearing, a judge will be tasked with the difficult decision of determining what legal and physical custody arrangement is in the best interest of the child. Our experienced attorneys can assist you in navigating these and other issues that may arise.
Some other common questions or notes that we frequently see are listed below:
- There is no maternal preference regarding custody.
- A parent has a paramount constitutional right to custody of their child over a nonparent, absent a showing of neglect or other forfeiture of constitutional rights.
- A temporary emergency custody order is available when
- a) a child is exposed to a substantial risk of bodily injury or sexual abuse, OR
- b) there is a substantial risk that the child may be abducted or removed from the State of North Carolina for the purpose of evading the jurisdiction of North Carolina courts.
- See N.C.G.S. 50-13.5(d)(3).
- A child of appropriate age can testify and give an opinion as to custodial preference, however a trial judge has discretion as to what weight to give the testimony.
- Motions for psychological evaluation and motions for drug testing are common in custody actions.
- Custody orders are generally enforceable by the contempt powers of the court.
- Though limited, a trial judge has broad discretion in making a custody determination.
Frequently, the issue of child support goes hand in hand with custody actions. Child support litigation is often contentious and can lead to greater angst between the parties. Our attorneys will explain the law and other considerations when you come in to discuss your support issue.
The court will primarily look to a couple of factors when making a support determination:
- The income of the parties
- The income model is presumed to be correct but for extraordinary circumstances, generally with a very high earning parent or parents.
- If a parent is intentionally suppressing income, the court can consider earning potential.
- Contributions by third parties can be considered.
- The number of overnights each parent has with the child.
- Worksheet A is used when one parent has primary physical custody and exercises 243 overnights or more per year with the child.
- Worksheet B is used when no parent exercises less than 123 overnights per year with the child.
- There also needs to be a true sharing of expenses to use Worksheet B
- Worksheet A vs. Worksheet B will determine the percentage of income of both parties in determining a support amount
- Worksheet A is used when one parent has primary physical custody and exercises 243 overnights or more per year with the child.
- Amounts for extraordinary expenses
- Child care, daycare, dental expenses, counseling, uninsured medical expenses are common examples.
- Health insurance
- When reasonably available, the court must order a parent or responsible party to maintain health insurance.
A child support obligation will terminate when:
a) the child reaches 18 years of age or is emancipated, OR
b) the child is in secondary school and graduates, ceases attending school, fails to make academic progress, or turns 20 years old, OR
c) the payor dies.
- Courts will enforce private or consent agreements between parties for child support beyond the age of majority and for college education.
- Past due arrears are deemed to be vested and cannot be modified or vacated.
- If there has been no prior support order, a parent can request retroactive support for up to three years prior.
Whether you are looking to recieve child support, feel that the amount you are paying is not correct, or have any other issue relating to child support, our expeirenced attorneys are here for you in your time of need!
Post Separation Support (PSS) and Alimony
It is very common that during a marriage, one party is the primary wage earner, and the other party is a secondary wage earner. Post separation support and alimony are aimed to ensure a secondary or non-wage earner has the ability to maintain their standard of living upon a separation and divorce. The information below is intended to give a brief overview to post-separation support and alimony law in North Carolina.
Definitions are incredibly important in post separation support and alimony law in North Carolina. Here are the key definitions to familiarize yourself with:
- "Dependent spouse" means a spouse, whether husband or wife, who is actually substantially dependent upon the other spouse for his or her maintenance and support or is substantially in need of maintenance and support from the other spouse.
- "Supporting spouse" means a spouse, whether husband or wife, upon whom the other spouse is actually substantially dependent for maintenance and support or from whom such spouse is substantially in need of maintenance and support.
- "Postseparation support" means spousal support to be paid until the earlier of any of the following:
- The date specified in the order for postseparation support.
- The entry of an order awarding or denying alimony.
- The dismissal of the alimony claim.
- The entry of a judgment of absolute divorce if no claim of alimony is pending at the time of entry of the judgment of absolute divorce.
- Remarriage or cohabitation by the dependent spouse
- "Alimony" means an order for payment for the support and maintenance of a spouse or former spouse, periodically or in a lump sum, for a specified or for an indefinite term, ordered in an action for divorce, whether absolute or from bed and board, or in an action for alimony without divorce.
- "Marital misconduct" means any of the following acts that occur during the marriage and prior to or on the date of separation:
- a. Illicit sexual behavior. For the purpose of this section, illicit sexual behavior means acts of sexual or deviate sexual intercourse, deviate sexual acts, or sexual acts defined in G.S. 14-27.20(4), voluntarily engaged in by a spouse with someone other than the other spouse;
- b. Involuntary separation of the spouses in consequence of a criminal act committed prior to the proceeding in which alimony is sought;
- c. Abandonment of the other spouse;
- d. Malicious turning out-of-doors of the other spouse;
- e. Cruel or barbarous treatment endangering the life of the other spouse;
- f. Indignities rendering the condition of the other spouse intolerable and life burdensome;
- g. Reckless spending of the income of either party, or the destruction, waste, diversion, or concealment of assets;
- h. Excessive use of alcohol or drugs so as to render the condition of the other spouse intolerable and life burdensome;
- i. Willful failure to provide necessary subsistence according to one's means and condition so as to render the condition of the other spouse intolerable and life burdensome.
How is Post Separation Support Determined?
In ordering postseparation support, the court shall base its award on the financial needs of the parties, considering the parties' accustomed standard of living, the present employment income and other recurring earnings of each party from any source, their income-earning abilities, the separate and marital debt service obligations, those expenses reasonably necessary to support each of the parties, and each party's respective legal obligations to support any other persons.
- A dependent spouse is entitled to an award of postseparation support if...the court finds that the resources of the dependent spouse are not adequate to meet his or her reasonable needs and the supporting spouse has the ability to pay.
- At a hearing on postseparation support, the judge shall consider marital misconduct by the dependent spouse occurring prior to or on the date of separation in deciding whether to award postseparation support and in deciding the amount of postseparation support.
- When the judge considers these acts by the dependent spouse, the judge shall also consider any marital misconduct by the supporting spouse in deciding whether to award postseparation support and in deciding the amount of postseparation support.
How is Alimony Determined?
The court shall award alimony to the dependent spouse upon a finding that one spouse is a dependent spouse, that the other spouse is a supporting spouse, and that an award of alimony is equitable after considering all relevant factors (see be.
- If the court finds that the dependent spouse participated in an act of illicit sexual behavior, as defined in G.S. 50-16.1A(3)a., during the marriage and prior to or on the date of separation, the court shall not award alimony.
- If the court finds that the supporting spouse participated in an act of illicit sexual behavior, as defined in G.S. 50-16.1A(3)a., during the marriage and prior to or on the date of separation, then the court shall order that alimony be paid to a dependent spouse.
- If the court finds that the dependent and the supporting spouse each participated in an act of illicit sexual behavior during the marriage and prior to or on the date of separation, then alimony shall be denied or awarded in the discretion of the court after consideration of all of the circumstances.
- Any act of illicit sexual behavior by either party that has been condoned by the other party shall not be considered by the court.
The court shall exercise its discretion in determining the amount, duration, and manner of payment of alimony. The duration of the award may be for a specified or for an indefinite term. In determining the amount, duration, and manner of payment of alimony, the court shall consider all relevant factors, including:
- The marital misconduct of either of the spouses. Nothing herein shall prevent a court from considering incidents of post date-of-separation marital misconduct as corroborating evidence supporting other evidence that marital misconduct occurred during the marriage and prior to date of separation;
- The relative earnings and earning capacities of the spouses;
- The ages and the physical, mental, and emotional conditions of the spouses;
- The amount and sources of earned and unearned income of both spouses, including, but not limited to, earnings, dividends, and benefits such as medical, retirement, insurance, social security, or others;
- The duration of the marriage;
- The contribution by one spouse to the education, training, or increased earning power of the other spouse;
- The extent to which the earning power, expenses, or financial obligations of a spouse will be affected by reason of serving as the custodian of a minor child;
- The standard of living of the spouses established during the marriage;
- The relative education of the spouses and the time necessary to acquire sufficient education or training to enable the spouse seeking alimony to find employment to meet his or her reasonable economic needs;
- The relative assets and liabilities of the spouses and the relative debt service requirements of the spouses, including legal obligations of support;
- The property brought to the marriage by either spouse;
- The contribution of a spouse as homemaker;
- The relative needs of the spouses;
- The federal, State, and local tax ramifications of the alimony award;
- Any other factor relating to the economic circumstances of the parties that the court finds to be just and proper.
- The fact that income received by either party was previously considered by the court in determining the value of a marital or divisible asset in an equitable distribution of the parties' marital or divisible property.
See N.C.G.S. §§ 50-16.1A, 50-16.2A, 50-16.3A
This stuff is complicated! If you find yourself in the unfortunate situation of separating from your spouse, feel free to contact our office to set up a consultation. Our years of experience can assist you in navigating this uneasy time in your life, and help you develop a strategy for your case.
When a relationship comes to an end, one of the foremost questions will be: what happens to all of the property? Equitable Distribution is the legal process for determining which party gets the marital assets and debts. Everything from household appliances, retirement accounts, vehicles, and real property may be subject to the Equitable Distribution process.
Often there are three primary fights in Equitable Distribution:
- What category is the property?
- How do we value the property?
- Who gets the property?
What Category is the Property?
- "Marital property" means all real and personal property acquired by either spouse or both spouses during the course of the marriage and before the date of the separation of the parties, and presently owned, except property determined to be separate property or divisible property.
- "Separate property" means all real and personal property acquired by a spouse before marriage or acquired by a spouse by devise, descent, or gift during the course of the marriage. However, property acquired by gift from the other spouse during the course of the marriage shall be considered separate property only if such an intention is stated in the conveyance.
- "Divisible property" means all real and personal property as set forth below
- a. All appreciation and diminution in value of marital property and divisible property of the parties occurring after the date of separation and prior to the date of distribution, except that appreciation or diminution in value which is the result of postseparation actions or activities of a spouse shall not be treated as divisible property.
- b. All property, property rights, or any portion thereof received after the date of separation but before the date of distribution that was acquired as a result of the efforts of either spouse during the marriage and before the date of separation, including, but not limited to, commissions, bonuses, and contractual rights.
- c. Passive income from marital property received after the date of separation, including, but not limited to, interest and dividends.
- d. Passive increases and passive decreases in marital debt and financing charges and interest related to marital debt.
How do we value the property?
The determination of the value of property can lead to major disagreements. Frequently an appraisal is required, especially for expensive items, business interests, or real estate. For smaller items, judges will often resort to the yard-sale method: how much would you be willing to pay for an item at a yard-sale. Value can be determined by market value or other estimates. The value of property may also have other considerations, such as depreciation, encumbrances, liens, or other debts. It is imperative you obtain an attorney who understands the intricacies and nuance in valuation!
Who gets the property?
There shall be an equal division by using net value of marital property and net value of divisible property unless the court determines that an equal division is not equitable. If the court determines that an equal division is not equitable, the court shall divide the marital property and divisible property equitably. The court shall consider all of the following factors under this subsection:
- The income, property, and liabilities of each party at the time the division of property is to become effective.
- Any obligation for support arising out of a prior marriage.
- The duration of the marriage and the age and physical and mental health of both parties.
- The need of a parent with custody of a child or children of the marriage to occupy or own the marital residence and to use or own its household effects.
- The expectation of pension, retirement, or other deferred compensation rights that are not marital property.
- Any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of such marital property by the party not having title, including joint efforts or expenditures and contributions and services, or lack thereof, as a spouse, parent, wage earner or homemaker.
- Any direct or indirect contribution made by one spouse to help educate or develop the career potential of the other spouse.
- Any direct contribution to an increase in value of separate property which occurs during the course of the marriage.
- The liquid or nonliquid character of all marital property and divisible property.
- The difficulty of evaluating any component asset or any interest in a business, corporation or profession, and the economic desirability of retaining such asset or interest, intact and free from any claim or interference by the other party.
- The tax consequences to each party, including those federal and State tax consequences that would have been incurred if the marital and divisible property had been sold or liquidated on the date of valuation. The trial court may, however, in its discretion, consider whether or when such tax consequences are reasonably likely to occur in determining the equitable value deemed appropriate for this factor.
- Acts of either party to maintain, preserve, develop, or expand; or to waste, neglect, devalue or convert the marital property or divisible property, or both, during the period after separation of the parties and before the time of distribution.
- In the event of the death of either party prior to the entry of any order for the distribution of property made pursuant to this subsection:
- Property passing to the surviving spouse by will or through intestacy due to the death of a spouse.
- Property held as tenants by the entirety or as joint tenants with rights of survivorship passing to the surviving spouse due to the death of a spouse.
- Property passing to the surviving spouse from life insurance, individual retirement accounts, pension or profit-sharing plans, any private or governmental retirement plan or annuity of which the decedent controlled the designation of beneficiary (excluding any benefits under the federal social security system), or any other retirement accounts or contracts, due to the death of a spouse.
- The surviving spouse's right to claim an "elective share" pursuant to G.S. 30-3.1 through G.S. 30-33, unless otherwise waived.
- Any other factor which the court finds to be just and proper.
See N.C.G.S. §§ 50-20.
We are happy to assist our clients in domestic matters involving a claim for Equitable Distribution. Please do not hesitate in giving us a call to schedule your consultation. Remember EQUAL does not always mean EQUITABLE! You need a lawyer who understands the law and how to fight for what is right!