FAMILY LAW

No one ever wants to have to meet with a family law attorney. But when you are facing one of the most difficult times of your life, you’ll be happy you have one. There is so much on the line in all family law matters and while there are many emotional, social, and psychological stressors you will have to deal with, it is always best to have skilled counsel to guide you through the legal matters to ensure the best possible result.

Consultations are $200.00 for up to 1 hour. If the consultation ends early, the firm will calculate what may be refunded.

Simple (Absolute) Divorce

When most people think of divorce, they probably think of those long drawn out battle you see in the movies or hear about concerning their favorite celebrities. North Carolina is a no fault divorce state. This means there is no need to fight over who is the “bad guy” or who’s fault it is that the marriage has failed.
In North Carolina, you only have to show two things to get divorced:

1. That at least one of the spouses has lived in North Carolina for the past six months
2. And That you have lived separate and apart for twelve months and at least one of you have no intention to resume the marriage.

Once those two things are found, that’s it, the divorce can be granted. The Court will not entertain any other arguments outside of those two points.

Wait! What about all the other stuff…support, alimony, adultery?
All of those matters are still handled, but they are each handled in different legal processes. So you can give a “simple” divorce which is often very cost effective and can be completed fairly quickly. However, if you do have property and/or other financial matters to resolve, you need to start the process BEFORE getting divorced. Once the Absolute Divorce (what we call it in North Carolina) is granted and you have not started the other processes, you forever lose the right to have a court decide them. So while some are in a rush to get divorced, it is not always the best idea. We can help with your divorce, but lets discuss how we can help in other ways.

Separation agreement

Many couples have financial and property issues that they need to resolve. By far, the most cost effective way to do so is for the parties to enter into a separation (property settlement) agreement. This is essentially a contract where the spouses can agree as to any payments of support, how property will be split, and a wide array of other matters. The only thing that is necessary is for the parties to come to some agreement as to all matters that need to be resolved. However, there are still technical details to make sure the agreement is legally enforceable, so it is essentially, you have an experienced attorney draft the agreement to make sure all formalities are met. In these agreements, skies the limit, as long as both parties can agree. If the parties cannot agree, then they put everything in the hands of a judge to decide their fate.

Alimony

One of the most contested family law issues is whether one spouse is entitled to alimony and if so, how much and for how long. Alimony is the payment of money to one former spouse from the other to support that spouse after the divorce is granted.
Before a Court determines if alimony is appropriate, the Court will first determine if either spouse committed “illicit sexual behavior” during the marriage up until the date the couple separated. If the spouse that has been determined to be the dependent spouse is guilty of such acts, the Court cannot grant alimony (this is as close as NC gets to an at-fault divorce), even if there’s a financial need. If the supporting spouse engaged in the illicit sexual acts, the Court will automatically grant an award of alimony. If both spouses are guilty, the court will determine whether alimony is appropriate and, if so, how much the supporting spouse will pay (essentially, the illicit acts nullify each other). (N.C.G.S. § 50-16.3A (a))
If there have been no illicit sexual acts, or if both spouses have engaged in them, the Court will use the following 15 point “test” to determine the amount, duration, and payment method for alimony:

• If there has been any marital misconduct, including abandonment, cruel treatment, or excessive use of alcohol or drugs (N.C. Gen. Stat. § 50-16.1A (3) (2018).)
• The relative earning capacities for each spouse
• The ages and the physical, mental, and emotional health of both spouses
• The amount and sources of earned and unearned income of both spouses
• The length of the marriage
• To what extent one spouse contributed to the other’s education, training, or increased earning power
• Whether either spouse is a custodial parent, and, if so, if caring for the child reduces that spouse’s earning ability
• The standard of living during the marriage
• Each spouse’s training and education history and the time necessary for the supported spouse to acquire job training or employment to become self-supporting
• Both spouse’s separate assets and liabilities
• The property each spouse brought to the marriage (and in theory should take with them)
• Contributions by either spouse as a homemaker
• The overall survival needs of both spouses
• The tax ramifications of any alimony award, and
• Any other factor the Court considers relevant. (N.C.G.S. § 50-16.3A (b))

Once the court evaluates all the entire test, it will decide the amount, length, and payment method (sometimes) for an alimony. There’s no set formula for alimony, and judges have WIDE discretion when deciding the final award. However, the law requires the Court to list the reasons for a denial or award of alimony and reasons for the amount and duration. (N.C.G.S. § 50-16.3A (c))

Equitable Distribution

Courts in North Carolina divide property according to the equitable distribution method, which means that the court will divide your property in a way that is deemed to be fair to each spouse.
The Court begins the process with the presumption that it is equitable to split the marital and divisible property equally between the spouses. However, North Carolina law recognizes that there are times where an equal split of property would be unfair under the circumstances of a particular case. To determine whether that is the case in your divorce, the court will review a number of factors to determine the past efforts and future ongoing needs of both parties. Ultimately, the result must be and equitable (just) division—even if it is unbalanced on its face.

Dividing and Distributing Marital and Divisible Property

Before the court can divide your property, it must characterize each item into one of three categories: marital, divisible, or separate. These categories are especially important because a party’s individual separate property will remain free from division by the Court. The court can only divide property deemed as either marital or divisible property.

Marital Property

Items deemed to be Marital property include property obtained or earned during the marriage through the date of the parties’ separation. 401k accounts, pensions, retirement benefits, and other deferred compensation rights (monies that while earned at one time, are not paid out until later) earned during the marriage are also marital property. The court will presume that all property acquired during the marriage and before separation is marital property. (N.C.G.S. § 50-20 (b)(1).)

Divisible Property

Courts declares items to be divisible property whenever there is a any increase in the value of marital property that happens between the date of separation and distribution (i.e…value incurred after the parties separate). This category will include any money or property that one or both spouses earned during marriage but did not realize until after separation – like a bonus or commission. (N.C.G.S. § 50-20 (b)(4)’)

Separate Property

North Carolina law deems separate property to be any assets or interests that a party actively gains or loses after the date of separation and all property that was owned before the parties married. Property a spouse obtained during the marriage can be included as long as that property was intended for the individual spouse such as an inheritance that specifically only names one spouse. (N.C.G.S. § 50-20 (b)(2). It should be noted that debts are treated the same as any assets are.

Considerations used in Property Division

Starting with the presumption of equal division of the property, the court will consider certain factors in splitting the marital and divisible property equitably. Among these factors include:

• Ages and health of the spouses
• The parties’ income, assets, and liabilities
• The duration of the marriage
• The liquidity (ability to immediately use) of the various property
• The contribution of the spouses to the marital property or marital assets. (N.C.G.S. § 50-20 (c).)

As you see, it’s a very detailed and complex process. If you will be at the mercy of the Court to decide what property and assets you walk away from, you will want skilled representation to maximize your recovery.

Child Custody

Filing for Custody in North Carolina

Either parent can file a complaint custody at any time. While parents can also agree to the terms of custody and visitation in an agreement; it is often a mistake to continue without an agreement or court order. Far too many parents operate this way and learn the hard way when the other parent is or becomes uncooperative.

In most cases the parents are required to attend mediation before a trial for custody may be held. Through mediation, many couples are able to work out successful and amenable custody agreements in North Carolina. However, if mediation fails, a Court will determine the custody issues.

Best Interest of the Child in North Carolina

Custody law in North Carolina require a Court to make custody decision by considering what will best “promote the interest and welfare of the child.” Essentially, a Court will make any custody order based on a child’s best interests. This is completely within the discretion of the Judge hearing the case.
Some examples of factors that Judges in North Carolina will consider.

• The strength or lack thereof of each parent’s relationship with the child
• The physical and emotional health of each parent
• The ability of the parents to care for and raise the child.
• Evidence concerning how each parent allows the child to interact with the other parent
• Relationships and ties to siblings and other relatives if the child is old enough, the Court will consider his or her wises, although it is rarely a determinative factor
• An ties to a location, school, friends, social connections
• Any special needs of the child.
• ALL other factors which are indicative of the child’s best interests.

In North Carolina, there’s no preference for mothers over fathers in a custody dispute. A judge will design a custody arrangement according to the child’s needs and best interests.
Note: A common misconception is that there is a preference for mothers over father. This is false and both parents are equally evaluated.

Joint and Custody in North Carolina

Under North Carolina law, there is a distinction between physical and legal custody. “Physical custody” refers to actual time in which parent lives with the child. Joint physical custody typically requires both parents to have significant amounts (not necessarily equal) of time with the child. With Sole custody, one parent lives with the child full time, while the other is granted visitation rights.

Legal custody gives the parent the power to make certain or all major decisions concerning the child. These typically include decisions related to medical care, education choices, and participation in religious activities. When parents have joint legal custody, they are required to make decisions together concerning the welfare of the child. Parents will sole legal custody can make all of these decisions without consulting the other parent. See N.C.G.S. § 50-13.2.

Child Support

Child Support is perhaps the most misunderstood and most controversial family law concept. You have seen the celebrity child support suits where an athlete or other entertainer is required to pay what most people might consider a ridiculous amount for monthly child support payments. North Carolina courts use a standard calculator to determine the amount of child support one parent will pay to the other. See N.C.G.S. § 50-13.4.
However, it is not just that simple. To make a proper ruling, the Court must be aware of a number of factors including:

• The amount of time each parent has the child
• The current, accurate income of both parents
• Imputation of income (if there is evidence that a parent is purposefully not working)
• Other important expenses such as healthcare
• Necessary but extraordinary expenses such as items for special needs children
• Money being paid to support other children
• Accustomed standard of living

As you can imagine, skilled representation is necessary to make sure the proper amount is being paid to support the child. Further, modifying a child support order requires showing a significant change of circumstances. You need proper representation the first time as you may not get a second chance to get it right.