Family Law FAQ
(Question): What are the grounds for divorce in North Carolina?
(Answer): You may file for divorce after being separated for at least a year and a day. You and your spouse must have been living apart, in separate homes, during that time, with the intention that the separation be permanent. Either you or your spouse must live in North Carolina and must have lived in the state for a least six months. If you are thinking about a separation or divorce, we can assist you and help you preserve your rights through the process.
(Question): When can I get divorced in North Carolina?
(Answer): You must wait one year after separation before you can file for divorce in North Carolina.
(Question): Where do I file the divorce?
(Answer): Typically, you file your divorce in the county where you or your spouse lives. But you can file in other North Carolina counties subject to a challenge by your spouse for lack of proper venue.
(Question): What is the difference between separation and divorce?
(answer): Separation typically occurs when one spouse moves out of the marital home with the intent to live elsewhere. You are legally married to your spouse during this separation period that occurs before divorce.
Divorce is the dissolution of your marriage and is completed with entry by the Court of a divorce decree.
(Question): Can I settle my case before I get divorced?
(Answer): Yes. Many people do. All of your issues can be resolved prior to divorce if both parties are motivated and in agreement.
(Question): During the one-year separation period to get a divorce, am I responsible for bills my spouse incurs or am I entitled to any property he/she may obtain during that time?
(Answer): It depends on your circumstances. Property acquired and debts incurred during the separation are treated differently than the property and debt accumulated during marriage. However, one party may have a valid support claim which must be evaluated to determine what and how much to pay during this period.
(Question): What if my spouse runs up a lot of debt in my name?
(Answer): There are a number of ways to protect your interests during the separation period if you are willing to take action.
(Question): Who can get spousal support?
(Answer): In North Carolina, alimony and post-separation support are awarded to the dependent spouse who cannot pay his or her reasonable monthly expenses. The other spouse must be able to pay that support.
(Question): What is the difference between post separation support and alimony?
(Answer): there are two forms of spousal support in North Carolina: post separation support and alimony. Post separation support is intended to be temporary. This type of support generally lasts until alimony is awarded or denied.
Alimony is a longer-term form of support. The court will determine the amount and duration of alimony.
(Question): How does the court decide the amount and duration of alimony?
(Answer): North Carolina law provides the following factors for the court to consider when determining the amount and duration of alimony:
- The marital misconduct of either of the spouses
- 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 limited to, earnings, dividends, and benefits such as medical, retirement, insurance, social security, and 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 and divisible asset in an equitable distribution of the parties’ marital or divisible property
(Question): Can the alimony be changed?
(Answer): Modification of court-ordered alimony can be modified by filing a motion in the cause and a showing of changed circumstances by either party. Determining if you have changed circumstances requires careful analysis of the facts of your case.
(Question): Is fault required to receive alimony?
(Answer): No. Both postseparation support and alimony can be awarded without any requirement that the supporting spouse be proven to have been at fault.
Fault continues to have a role in alimony determinations. It can bar a dependent spouse from receiving alimony. And, fault by a supporting spouse can cause an entitlement to alimony.
(Question): What is marital fault?
(Answer): Marital fault in North Carolina is any of the following:
- Illicit sexual behavior.
- Involuntary separation of the spouses in consequence of a criminal act committed prior to the proceeding in which alimony is sought.
- Malicious turning out of doors.
- Cruel or barbarous treatment endangering the life of the other spouse.
- Such indignities as to render the condition of the other spouse intolerable and life burdensome.
- Reckless spending of the income of either party, or the destruction, waste, diversion or concealment of assets.
- Excessive use of alcohol or drugs so as to render the condition of the other spouse intolerable and life burdensome.
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.
(Question): What will happen to my property if I get a divorce?
(Answer): North Carolina law presumes a 50-50 split in the value of marital property, i.e. the property that you and your spouse acquired during the marriage. If you cannot agree on how to divide your property, the court will do it by identifying, classifying, valuing, and distributing your property. This analysis can be complex and requires knowledge of the many factors the court considers to divide property. In addition, the court could award one party more than 50% of the marital assets considering the following factors:
- Income, liabilities, and property of each party
- Support obligations from a former marriage
- Length of marriage, age, and health of both parties
- Custodial parent’s need to keep the marital home
- Expectation of pension, retirement or other deferred compensation
- Contribution toward marital property by the party not having title
- Contribution made by one spouse towards the education or career potential of the other spouse
- Contribution to an increase in value of separate property
- Liquid or non-liquid character of assets
- Difficulty of evaluating the value of a particular asset and the desirability of retaining such asset intact and free from any claim by the other spouse
- Tax consequences
- Acts of either spouse to maintain, preserve, develop or expand; or to waste, neglect, devalue or convert property during the period after separation and before distribution
- Any other factor the court finds to be relevant
(Question): How does a prenuptial agreement affect equitable distribution?
(Answer): If done properly, a prenuptial agreement supersedes the statutory scheme for deciding disputes of spouses at divorce and lets you make your own plan.
(Question): Can I settle equitable distribution outside of court?
(Answer): Yes. Many of these cases are settled by agreement.
(Question): How is the value of the assets and debts in equitable distribution determined?
(Answer): The valuation step involves assigning a fair market value or amount that a willing buyer would pay a willing seller for the asset.
(Question): What is domestic violence under North Carolina law?
(Answer): Causing or attempting to cause physical injury. Placing one in fear of “imminent serious bodily injury.” Continued harassment, by committing at least two wrongful acts against the plaintiff with no legitimate purpose, and which causes “substantial emotional distress.” Sexual assault can also be domestic violence.
(Question): What happens when I file a claim alleging domestic violence?
(Answer): First, the court decides if you get an immediate court order, called an ex parte order, because the other side is not present or given notice. Next, the court schedules a hearing in a short period of time to give the other side an opportunity to be heard.
(Question) What remedies can I get?
(Answer): Giving the aggrieved party possession of the residence and excluding the other spouse from the household, evicting the party and assisting the aggrieved party in returning to the home, and requiring a party to provide alternate housing. Temporary custody and support can also be ordered.
(Question): How long does a domestic violence protective order last?
(Answer): Normally one year, but it can be renewed for a second year.
(Question): Who can file for this protection?
(Answer): Spouses, former spouses, boyfriends, girlfriends, children, and others.
(Question): What is the difference between alienation of affection and criminal conversation?
(Answer): Under North Carolina law, Alienation of Affection is when someone takes away the affections of one spouse for another, and harms or destroys the marriage. Criminal Conversation is the act of having sex with someone else’s spouse. These are claims filed against 3rd parties.
(Question): When should someone pursue a case for alienation of Affection?
(Answer): This is a difficult question to answer because many factors enter in to this decision, including: the amount of evidence you have, the 3rd party’s ability to pay a judgment, your resources to pursue litigation, etc.
(Question): How does the court assess your loss?
(Answer): A court or jury can award compensatory and punitive damages. Compensatory damages can be: loss of your spouse’s income and your property; emotional distress requiring treatment; and your loss of employment, among other losses.
Punitive damages are reserved for shocking conduct.
(Question): What is considered enforceable custody in North Carolina?
(Answer): In North Carolina, for you to have an enforceable custody arrangement, it must be written in the form of a court order.
(Question): How does a Court determine custody?
(Answer): In North Carolina, child custody decisions are made by a District Court judge based on the “Best Interests” of the child for an initial custody determination.
(Question): Can an initial custody determination be changed?
(Answer): Yes. But the Court must recognize a substantial and material change of circumstances effecting the minor child to reconsider the original custody order.
(Question): Is there a difference between legal and physical child custody?
(Answer): Both legal and physical custody are required as part of a valid custody order in North Carolina.
Legal custody of a child gives a parent the right to make major decisions in the child’s life, such as where they go to school. Physical custody is the schedule, or where a child will live on a daily basis.
(Question): Do I have to go to mediation if I file a custody case?
(Answer): Most likely the answer is yes. Most counties have mandatory custody mediation before you can have your custody case heard by a judge.
(Question): I already know we won’t settle our case in mediation, do I have to waste my time?
(Answer): Probably. Many cases settle in mediation, even when the parties thought it to be unlikely. Therefore, most counties now require all custody cases to be mediated.
(Question): Who pays child support when both parents have joint custody?
(Answer): The reason why there still is a child support obligation even when custody is shared equally, is because our child support guidelines calculate the obligation based on time spent with each parent and the income of each parent. So even if the child spends equal time with each parent, the parent with the higher income will likely owe child support.
(Question): What factors are used to decide the amount paid for child support?
(Answer): North Carolina has guidelines that specifically answer this question: monthly gross income, pre-existing child support, monthly work-related child care costs, health insurance premiums, extraordinary expenses, and number of overnights.
(Question): What can be done if a parent does not pay child support?
(Answer): The party owed support must pursue enforcement through the court’s contempt powers.
(Question): Can child support be modified?
(Answer): Court ordered child support can be modified based on a change of circumstances. Guidance is usually needed to determine if you have grounds to modify. If your child support is by agreement instead of court order, a different set of rules apply to efforts to modify.
(Question): When is a parent considered incompetent?
(Answer): According to North Carolina’s law, an individual must be one “who lacks sufficient capacity to manage [his or her] own affairs or to make or communicate important decisions concerning [his or her] person, family, or property whether the lack of capacity is due to mental illness, mental retardation, epilepsy, cerebral palsy, autism, inebriety, senility, disease, injury, or similar cause or condition.”
(Question): Are there alternatives to guardianship?
(Answer): Some alternatives to guardianship include power of attorney, representative payee, and revocable trust.
(Question): How does this process work?
(Answer): The party seeking a guardianship files a petition and must have grounds to satisfy the court that the Respondent is incompetent. Then the proposed Guardian must satisfy the court that they are appropriate. The Court will appoint a guardian ad litem to represent the interests of the Respondent and report back to the Court on whether a guardian is needed.