Family Law/Divorce 101

divorceimageThere is a lot to know about family law and divorce. Here are a few highlights on the topics to get you started.

Absolute Divorce in North Carolina

In North Carolina, if you have been a resident of the state for six months and physically separated from your spouse for more than one year (366 days or more), you are eligible to obtain an absolute divorce. A separation agreement or distribution of property is not required prior to obtaining the divorce, and such a decree can usually be obtained in an ‘uncontested’ manner. However, you must assert claims for spousal support and/or equitable distribution before the absolute divorce judgment is entered; otherwise, your claims for such relief will be barred.

The procedure to obtain an absolute divorce itself is fairly simple. However, having an attorney assist with the procedure can ensure that all legal rights are honored, and allow for a swift result. If your marriage has lasted a long time, if the marriage has accumulated assets and debts while married, if you have retirement benefits or own a business, if you need to receive spousal support, and/or if you have minor children, there is nothing simple about the law involved, the procedure involved, or the decisions you must make. These issues are complex, and you need guidance and sound advice from an experienced family lawyer to help you protect your future. The costs associated with hiring an attorney to assist with these issues are minimal in relation to the expenses, rights, and rewards at stake – which will ultimately stick around for several years to come.

High Asset Divorce Cases

A high asset divorce can become very complicated when retirement assets, businesses, real estate, and other assets must be divided. It is important for any individual facing divorce to consult an attorney who is familiar with the legal issues associated with a high asset divorce, who can generate a cost-effective and well-reasoned division of assets and debts, and who can coordinate activities with a variety of experts. In a high asset divorce, it may be necessary to consult with outside experts to determine the value of property and collect other information that could aid in property division. This firm frequently works with tax experts, accountants, appraisers and other experts in these matters.

Property Division (Equitable Distribution)

North Carolina is an “equitable distribution” state. This means that marital assets and debts acquired during a marriage must be valued and that the marital estate must be divided between the spouses. It does not necessarily mean that property must be divided evenly. Instead the property should be distributed to each respective spouse fairly according to a laundry list of factors and considerations. An experienced family lawyer has the knowledge and experience to effectively manage the complex issues which surround the classification, valuation and division of marital property and marital debt. Effectively handling an equitable distribution case involves knowing the law, understanding the attributes of the particular assets or debts involved and knowing how to assess and implement the factors to be considered when disbursing estate assets. These types of examinations are generally very complicated and require significant diligence and skill. To make sure that your questions are answered correctly, speaking with an experienced family attorney about marital property division is essential.

Post-Separation Support and Alimony Matters

Unlike child support, there are no set guidelines by which the court determines spousal support. Because of this, the amount of spousal support to be awarded by the court is difficult to predict. If alimony is not decided by private agreement, but becomes an issue for the trial court, a judge may consider each of the factors listed in North Carolina’s alimony statute when making his or her decisions. These factors include questions such as:

  • How long was the marriage?
  • What was the standard of living during the marriage?
  • The dependency or supporting nature of each spouse; and whether medical issues or earning capacity limits exist?
  • What are the reasonable needs of the dependent spouse; and the ability to pay of the supporting spouse?
  • Was marital misconduct, including adultery, present in the marriage.

Alimony cases are very fact-specific. Lake Norman Law Firm will help you to gather all of the pertinent information and then organize the presentation in a way that will enhance your likelihood of receiving an amount of spousal support tailored to fulfill your individual needs and circumstances.

Types of Spousal Support in North Carolina

In North Carolina, courts award two types of spousal support — post-separation support and alimony. Post-separation support is a type of time-limited temporary spousal support. Its goal is to put support in place before the entire divorce case has been developed. Alimony, on the other hand, is usually awarded by a Court after the equitable distribution of marital assets and debt has been completed. Alimony is more permanent than post-separation support, although it may not necessarily last a lifetime.

Alimony Enforcement

The legal process for enforcing alimony payments is similar to that of child support. If the spouse that has been court-ordered to pay alimony is refusing to do so, the receiving spouse can file a petition with the court asking to enforce the order. Another option for receiving alimony is wage garnishment, where a court-determined amount of money is withheld from the nonpaying party’s paycheck. Talk to an alimony enforcement attorney to discuss your legal options.

Child Custody

The decisions surrounding child custody can have a profound impact on a child’s life. Lake Norman Law Firm represents parents in child custody matters, whether to establish initial parenting arrangements or for enforcement or modification of existing child custody orders. In dealing with child custody and visitation issues, there are any number of solutions and parenting plans from which a family or a Judge may select. The choice will turn on each family’s specific circumstances. Often, parents share joint physical and legal custody, in which parents share physical custody and participate in making joint decisions related to schooling, religious upbringing and healthcare for their children. At other times, a single parent may have physical custody while the other parent is granted scheduled visitation rights, and in some situations, one parent will be granted sole legal and physical custody where they have nearly all parental rights. The ultimate custody arrangement combined with other factors will also directly correlate to the child support requirement, so understanding that connection through your family lawyer’s counsel is very important.

In any event, the resounding standard for determining child custody is always The Best Interests of the Child(ren). Lake Norman Law firm takes this standard very seriously, and always prefaces legal advice to the client with the understanding that the children subject to a custody dispute come first.

Mediation of Child Custody Issues in Divorce Cases

There are undeniable advantages to solving problems and disputes through mediation. On occasions there are no alternatives to litigation, but most child custody solutions can be accomplished through dispute resolution techniques. Children should not be the object of a bitter adversarial proceeding, and the key in accomplishing the best interests of the children is working together to make sure this happens.

Third-Party Custody and Grandparents’ Visitation Rights

In North Carolina, grandparents are allowed some visitation rights by law, but they have no automatic right to seek custody of their grandchildren. Parents have a privileged (constitutionally protected) right to the care, custody and control of their children. Only if a parent consents, is shown to be unfit, or has otherwise acted in ways that are found to be inconsistent with their rights, can a third-party — including grandparents — obtain custody of children.

Relocation and Child Custody

In difficult economic times, parents often need to relocate to find work. Many of these parents must move long distances — even out of state — in order to find a position that meets their needs. Unfortunately, these moves can have significant effect on their children and any existing child custody and visitation agreements or orders that may already be in place. Lake Norman Law Firm can help you deal with custody orders and parenting plans which are in need of modification.

Child Support Concerns

In North Carolina, child support is determined using the child support guidelines and a mathematical rubric that considers various factors, such as the custody arrangement, the average monthly gross income of each parent, child care expenses, and health insurance costs. A child support attorney can ensure that child support is accurately calculated, request a deviation from the guideline amount, and assist through the modification process.

North Carolina Child Support Guidelines

In North Carolina, both parents are required to provide support for their children. This does not, however, mean that each parent will be required to pay an equal amount of money toward the support of his or her child. North Carolina law follows a series of child support guidelines. The guidelines use an income shares model that takes into account the average monthly gross income of both parents. For many parents, the child support guidelines set an amount of child support payable or receivable that is appropriate for the needs of the children and is in sync with their ability to pay. However, some parents have children whose financial needs depart from the guideline amounts — either by making the guideline amount insufficient or excessive. In these cases, things become more complex than a simple payment calculation. A departure from the child support guidelines is called a deviation.

Can Child Support Be Changed?

If there has been a substantial change in the circumstances of your situation, you may be able to obtain a child support modification. For example, if one spouse loses a job or income non-voluntarily or if a child requires additional money for necessary expenses, or if more than three (3) years have passed since the entry of the most recent child support order, you may need to explore your options in requesting a recalculation of the child support. Lake Norman Law Firm can help you address these situations and ensure that the existing child support orders are relevant to your family’s changing circumstances.

Child Support Enforcement

Enforcing a parent’s obligation to pay child support can be accomplished through contempt proceedings if the paying parent is refusing to honor the child support order. The parent who is refusing to pay may be held criminally responsible, and suffer additional civil penalties.

Marital Settlements (Separation Agreements)

In North Carolina, the large majority of separated spouses heading towards a divorce are able to resolve separation and post-divorce matters or disputes without judicial intervention. Instead, parties area able to enter into private contracts (typically called separation agreements) which dictate the economic aspects and custody terms after the separation and dissolution of the marriage.

A Separation and Property Settlement Agreement is a written contract which a married couple can enter at the time they decide to separate from each other and to live permanently separate and apart. Such Agreements are used in North Carolina to establish, among other things, how separating spouses will divide their assets and debts, how they will parent their children after separation and what their child support responsibilities will be. A Separation and Property Settlement Agreement is not an agreement to divorce, although many times the spouses will later become divorced.

A well-prepared Agreement can serve as a road map for you as you move forward with your life after separating from your spouse. The Agreement’s terms can determine where your children will live, which holidays they will spend with each parent and how you and the other parent will share expenses for the children’s benefit. For these and other reasons, it is critical to consult with an experienced family law lawyer to make sure that your Separation and Property Settlement Agreement is tailored to meet your specific needs and that the Agreement protects your interests.

Premarital Agreements

Marriages take work. Each marriage is a partnership between two people who must work hard to support each other through good times and bad. While premarital or prenuptial agreements may not be romantic, they do allow you to talk about this partnership prior to marriage and help ensure that your plans are based on honest communication — not just empty assumptions. By helping you proactively create a premarital agreement, Lake Norman Law Firm may be able to save you a great deal of heartache and litigation expenses if the marriage unfortunately fails.

Why Should I Have a Premarital Agreement?

Contrary to what many people believe, a premarital agreement is not evidence of a lack of trust or a willingness to quit if marriage becomes too hard. In fact, a premarital agreement can be extremely helpful in many situations. Premarital agreements allow engaged persons who already have children from previous marriages or relationships to make arrangements for those children in the event of the parent’s death. Additionally, if one or both of you owns significant assets, you can protect your ownership of those assets in your premarital agreement. Premarital agreements also provide an opportunity to discuss the organization of your rights and responsibilities before the marriage. Having this discussion before conflict arises may save you time and money and help avoid contentious divorce litigation.