Divorce

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Divorce

Absolute divorce is the only legal issue you must go through the District Court to resolve. Every other issue that we discuss can primarily be resolved amicably without court intervention. Although you can get a package from the courthouse containing a complaint, it is a good decision to at a minimum visit with an attorney to ensure the divorce is done right the first time.

Main points to know:

  1. You must be separated for one year and one day.
  2. An absolute divorce cuts off/terminates ALL rights to alimony and equitable distribution.
Divorce from Bed and Board

This law stems from some old common law and is less commonly used today in our court systems. Along with absolute divorce above, Divorce from Bed and Board is an action in District Court. You will need to file a verified complaint for this action. There are generally no “go by” documents or forms for this action and an attorney will need to help you draft this.

In order to get a divorce from bed and board, you must prove that your spouse has committed one of the following acts:

  1. Abandoned the family.
  2. Maliciously turned you out of doors (kicked you out of the home).
  3. Through cruel or barbarous treatment your spouse endangered your life (this is in addition to domestic violence options under Chapter 50B of the statutes).
  4. Offers you such indignities that it renders your condition intolerable and your life becomes burdensome.
  5. Your spouse has become an excessive user of alcohol or drugs and their use renders your condition intolerable and your life is now burdensome.
  6. Your spouse has committed adultery.
Separation Agreement & Property Settlement

Parties that want to make their own decisions about their separation and their separate lives generally enter into a Separation Agreement and Property Settlement. This is a contract between the parties. All issues of child custody, child support, alimony, and equitable distribution can be handled in the agreement. This is a less costly and private way to handle your separation.

Although many people come in and tell us that their spouse will never agree to sign anything, it is amazing how often agreements can be reached. It is imperative to provide your attorney with information about every aspect of your marriage and separation. Part of the reason for this is so that they can determine what is appropriate leverage for negotiations and whether or not a Separation Agreement and Property Settlement is right for you.

It is important to note that in North Carolina all Separation Agreements must be signed by both parties in the presence of a notary. The parties do not have to sign at the same time, but both signatures must be notarized.

Child Custody

The statutes state that any person claiming the right to custody of a minor child may institute an action or proceeding for custody. (There is a notable exception for rape victims so that their perpetrator cannot file for custody of a child conceived out of rape). This means that not only parents but anyone with a custodial interest in a child may file a claim for custody. While a biological parent has natural, constitutional rights to custody of a child, they can lose those rights through their actions.

Grandparents have their own set of rights to file for custody. The word custody can also mean visitation (they are interchangeable).

Anyone that files an action through the court for custody must first attend mediation with the other parent (or parties filing for custody). Mediation can be waived in limited circumstances, but generally it is one of the best places to settle your custody disputes. Situations that involve domestic violence, abuse to the children, substance abuse, or other problems may necessitate a motion to waive mediation being filed with the initial pleadings. Attorneys are not allowed to attend the court ordered mediation, only the parties. Mediation is confidential and none of the information or offers made in mediation may be discussed in court.

The guidepost for child custody cases and the most important question that a judge must ask is what is in the best interests of the minor child.

Child Support

Any person or agency having custody of a child may file for support of a child. A minor child that has a guardian may have their guardian institute a child support claim on the child’s behalf. There is a presumption that the biological mother and father will be primarily responsible for the support of the minor child. Additionally, parents of a minor that has their own child while under the age of 18 are legally responsible for BOTH their child and their grandchild’s child support until their child reaches maturity.

When one parent is voluntarily underemployed or depressing their income in bad faith, the court can impute (or create an imaginary amount) of income to use to set child support. The North Carolina General Legislature has established guidelines and worksheets so that everyone can determine their child support obligation with some basic information.

The primary information you need is as follows:

  1. The gross income from all sources for both parents.
  2. The total amount of work related (or school related) daycare expenses for the minor children.
  3. The cost of the medical insurance premium for each child.
  4. Any extraordinary expenses.
  5. The total amount of overnights the minor child spends with each parent.

Once you have this information you can create a worksheet. Worksheets are supposed to meet the reasonable needs of the minor child(ren) based on the children’s standard of living.

It is imperative that parents agree on who will claim the minor child for tax purposes, in what ratio or amount each parent will contribute to medical expenses, and any other child related expenses which the parties may incur. Note that a parent does not have an obligation to pay for college expenses unless they agree in writing to assume such an obligation, which we rarely recommend.

Once child support is established and being paid by an order, it should also be paid to the payee and withdrawn from the payor’s paychecks through wage withholding. Direct deposit can also be used by the parties if they do not want the government involved in their child support obligations.

Alimony & Post Separation Support (Spousal Support)

Alimony is payment for the support and maintenance of one spouse from the other. Alimony is paid by a supporting spouse to a dependent spouse. Alimony can be paid in incremental payments, a lump sum, or by paying for some expenses for the spouse.

Post Separation Support is temporary support or alimony that is paid by one spouse pending an alimony hearing. You will generally only find post separation support in court.

One of the benefits of alimony is that it is tax deductible for the party paying alimony (or post separation support) for so long as the alimony is paid pursuant to a written agreement or court order. Additionally, alimony recapture and alimony which terminates around a child related event (like reaching age 18 or graduating from high school) may have different tax deductibility and for this reason you should work with an attorney to ensure the alimony you are asking for/agreeing to pay is going to be tax deductible.

Determining the amount and duration of alimony is really the big question. For our office, clients fill out a financial affidavit which helps us to determine their monthly budget and needs, as well as their disposable income.

Marital misconduct is a factor for alimony. If you or your spouse have committed any of the following acts which are considered as marital misconduct by the court, then the alimony may be dramatically impacted, decreased, increased, or unavailable:

  1. Illicit sexual behavior
    a. Acts of sexual or deviate sexual intercourse
    b. Deviate sexual acts, or
    c. Rape
    d. Voluntarily engaged in by a spouse with someone other than their wife or husband
  2. Involuntary separation of the spouses due to a criminal act committed before the alimony action proceeded
  3. Abandonment
  4. Malicious turning out-of-doors (kicking someone out)
  5. Cruel or barbarous treatment endangering the life of the other
  6. Indignities that render the condition of the other spouse intolerable and their life burdensome
  7. Reckless spending of either spouses’ income
    a. Destruction of assets
    b. Waste of assets
    c. Diversion of assets
    d. Concealment of assets
  8. Excessive use of alcohol or drugs that makes the spouses’ life burdensome and condition intolerable.
  9. Willful failure to produce necessary subsistence according to the ability of each spouse that renders the condition intolerable and life burdensome

Once you have this information you can create a worksheet. Worksheets are supposed to meet the reasonable needs of the minor child(ren) based on the children’s standard of living.

It is imperative that parents agree on who will claim the minor child for tax purposes, in what ratio or amount each parent will contribute to medical expenses, and any other child related expenses which the parties may incur. Note that a parent does not have an obligation to pay for college expenses unless they agree in writing to assume such an obligation, which we rarely recommend.

Once child support is established and being paid by an order, it should also be paid to the payee and withdrawn from the payor’s paychecks through wage withholding. Direct deposit can also be used by the parties if they do not want the government involved in their child support obligations.

Equitable Distribution

North Carolina is not a community property state, but instead our law allows for equitable distribution. The court must make a number of determinations in an equitable distribution case. The court must determine what is marital property and what is separate property. There is also a third kind of property in North Carolina, which is distributive property.

An equal (50/50) division of marital property is presumed to be equitable and fair. However, most people ask for an unequal division of property. In North Carolina, you can ask for an unequal division of marital assets. There are a number of factors which the court must consider if someone asks for an unequal distribution, which are:

  1. The income, property, and liabilities of each party at the time the division of property is to become effective.
  2. Any obligation for support arising out of a prior marriage.
  3. The duration of the marriage and the age and physical and mental health of both parties.
  4. 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.
  5. The expectation of pension, retirement, or other deferred compensation rights that are not marital property.
  6. 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.
  7. Any direct or indirect contribution made by one spouse to help educate or develop the career potential of the other spouse.
  8. Any direct contribution to an increase in value of separate property which occurs during the course of the marriage.
  9. The liquid or nonliquid character of all marital property and divisible property.
  10. 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.
  11. 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.
    11a. 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.
    11b. 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:
    a. Property passing to the surviving spouse by will or through intestacy due to the death of a spouse.
    b. 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.
    c. 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.
    d. 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.
  12. Any other factor which the court finds to be just and proper.

The most expensive part of an equitable distribution case seems to be the requirement to place values on every item of property. Real estate and businesses appraisals tend to be rather expensive, especially if the appraiser needs to testify, which they generally do. Also, there may be a need to trace assets in banking accounts to determine if the funds are marital, separate, or divisible and this generally requires a forensic accountant.

Domestic Violence

The following people may file an action for relief from domestic violence:

  1. Current or former spouses
  2. Persons of opposite sex who live together or have lived together
  3. Are related as parents and children (or acting as a parent to a child), or grandchildren and grandparents – however an order may not be obtained against a minor under the age of 16
  4. People that have a child together
  5. Current or former household members, and
  6. Persons of the opposite sex who are in a dating relationship or have been in a dating relationship (casual acquaintance does not count as dating).

They can file for an order requesting protection against the perpetrator of anyone who commits one or more of the following acts (except self-defense does not count):

  1. Attempting to cause bodily injury or intentionally causing bodily injury,
  2. Placing the victim or the victim’s family in the fear of imminent serious bodily injury or continued harassment, or
  3. Committing any act defined in the Rape statutes

Client Questions

What is my spouse won’t agree to leave and I cannot move from my home or it is solely my home?

Answer:

This is a difficult situation that many clients find themselves in. When a living situation is untenable, one solution can be to file for Divorce from Bed and Board and ask the court to kick your spouse out of the home based on fault they have committed. Additionally, you can also ask the court for sequestration of the marital residence in child support or an interim distribution of the marital residence if you have good cause.

If I am planning to move out do I really need a Separation Agreement?

Answer:

Yes, yes, and yes. If you are planning to move out, have moved out, or otherwise have any remaining financial or legal ties with your spouse, you do need a separation agreement. Not only will the agreement give you peace of mind, but there are numerous legal issues to be resolved in your agreement. What about filing taxes or tax deductions? What about Alienation of Affections and Criminal Conversation waivers? What about the Doctrine of Necessaries? All of these things should be resolved in your agreement, along with a multitude of others. And NO you should not simply print off a go by from the internet. Do you really personally know what all the legal jargon means?

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You may have come to the website today searching for something specific that is not listed here. Please call as we cannot list everything here and combined we have extensive knowledge of every area of law that may affect your family in district court or we can refer you as necessary.

Cape Fear Family Law gave me a new life when I was hopeless. I don’t want to sound dramatic, but I had so many problems and they helped me work through each and every one of them.
-Rick P.

Divorce