Below are common questions individuals seeking family law guidance in North Carolina ask.
What does an absolute divorce require in North Carolina?
North Carolina requires couples to separate for at least a year before they can file for divorce. Separation begins when the two parties move to separate residences with the intent to live and remain separate and apart. When parties separate and are able to agree on issues such as the division of assets and debts, it is usually wise to formalize these obligations in a separation agreement. Separation agreements are binding on both parties and can be enforced by the court. Couples who elect to separate can execute agreements relating to:
- The division of personal property and debts between the former couple
- Any amount of child support that should be paid
- The amount of alimony to be paid
- Child custody and visitation schedules
- Any other issue except a finalized divorce itself
- The continuation of medical insurance coverage
How can arbitration and mediation help in a divorce?
Mediation is one way to resolve disputes. An individual mediator works with both parties to reach an amicable agreement. Arbitration is similar to mediation, except both people consent to be bound by the determination that the arbiter makes. North Carolina requires all divorces involving children to undergo mediation. This process can have several benefits, including reduced court costs and an amicable resolution to problems between couples.
What is divorce from bed and board?
Don’t let the name fool you. Divorce from bed and board is a procedure where one spouse requests that a court order the other spouse to leave the residence based upon bad conduct. It is not an absolute that dissolves your marriage permanently. The removal of the other spouse from the residence counts as the start of the separation period before a divorce can be finalized. Someone who files for divorce from bed and board must also allege that their spouse committed some wrong that is the basis for the divorce. The grounds for divorce from bed and board in North Carolina are:
- Malicious turning out of doors (i.e., throwing their spouse out of the house)
- Constructive abandonment (still living together but not contributing love and affection)
- Indignities (degrading actions such as insults, harassment, pornography and neglect that renders the other spouse’s life intolerable)
- Excessive use of alcohol or drugs
- Cruel or barbarous treatment (emotional or mental cruelty)
A finding of fault can lead to a court invalidating a prenuptial agreement. Someone whose former partner has filed for divorce from bed and board has several defenses. In North Carolina, they include:
- Condonation – A spouse who has accepted and forgiven their partner for the behavior, such as the excessive use of alcohol, is said to have condoned that behavior and cannot use it as grounds for divorce from bed and board unless it occurs again.
- Connivance – Connivance is similar to condonation and describes a situation where a spouse has consented to an act that would otherwise qualify for divorce from bed and board (e.g., adultery in an “open marriage”).
- Recrimination – Recrimination refers to the accusation that the person alleging fault also committed some act that would qualify for divorce, such as if each spouse cheated on the other.
Because divorce from bed and board can evict a spouse, some spouses may conspire to fabricate grounds for divorce from bed and board because they cannot afford to leave the marital residence.
What are a grandparent’s rights to child custody or visitation?
In certain situations, grandparents or other third parties (aunts, uncles, siblings and guardians) may be entitled to bring a claim for custody or visitation of children. In order to bring a claim for custody, these third parties generally must show that the biological parents are unfit, have neglected, abused or abandoned their children or have otherwise acted in a manner inconsistent with their parental rights. Our office has experience litigating these cases in court. Given the changing nature of grandparent and third-party custody laws, you need a seasoned attorney to guide you through this process.
Grandparents and other third parties may also be entitled to secondary custody rights in the form of visitation in certain circumstances. North Carolina law provides for certain scenarios where a grandparent or third party can petition the court for these visitation rights. As each of these cases and factual scenarios is different, you should contact our experienced attorneys to determine whether visitation rights are available to you.
These are only a few of the considerations a court may choose when determining custody. To learn more, speak with one of our family law attorneys about child custody and grandparents’ rights.
What types of custody and visitation are available to a petitioner?
There are primarily two types of custody available to someone in North Carolina: sole and joint legal custody. A grant of sole legal custody allows one person to have complete discretion about important decisions regarding the child’s upbringing, including the child’s education, religion, location and health care. A grant of joint legal custody requires both individuals to agree on such decisions. Physical custody, where the child actually lives, is something altogether different from legal custody. One party may be granted primary physical custody of the child while the other is granted secondary physical custody. The party with primary physical custody will house the child more than the secondary physical custody party. Child custody orders are ongoing, and can always be changed by the court with the right circumstances and help of a good attorney.
Someone who has secondary physical custody of a child has a right to visitation. The types of visitation available depend on what the parties agree to, based on their own needs. Some families have an agreement with informal visitation periods, while others may opt for a more rigid schedule.
What factors determine the amount of child support?
North Carolina uses a number of factors to determine how much child support the party without primary physical custody owes. These factors can include:
- The gross monthly income of each parent
- The earning potential of the parents
- Medical expenses
- Day care expenses and extraordinary expenses such as private school
The state also uses a payment formula dependent on other factors, such as previous child support obligations, the number of children and the level of income the parent can expect. Changes in income or other factors, such as the current child custody schedule, warrant a change in the formula that determines child support. Someone required to pay can petition the court through their lawyer to have the amount reduced.
What happens if a parent fails to pay child support?
A parent who wants to make sure they receive the proper amount of child support from their former partner can file a motion with the court to have a hearing on the matter. The parent who has not paid the full amount then has an opportunity to explain to the court why they did not comply with the order. Someone who refuses to obey the court’s child support orders can be found in contempt of court and arrested. This can also have a distinct effect on future job prospects and credit scores, and the person’s driver’s license could even be revoked.
How is alimony decided in North Carolina?
A court can order alimony to be paid to a spouse who was dependent on another spouse during their marriage. A unique twist in the law in North Carolina bars a spouse who committed adultery from receiving alimony. However, a finding that the supporting spouse was unfaithful requires an award of alimony. By law, courts in North Carolina are required to consider all marital assets as well as other factors, including:
- Marital misconduct of either spouse
- The age and physical, mental and emotional conditions of the spouses
- The length of the marriage
- The standard of living both spouses enjoyed during the marriage
- The contribution of one spouse as a homemaker
- The earning potential of both spouses
- The amount of savings and potential income of both spouses, including retirement accounts
- Child custody
- The contribution of one spouse to the earning power of another
- The property brought to the marriage by one spouse
There are a number of other factors that determine an alimony award. Speak with one of our High Point attorneys to learn more about your case.
What types of domestic violence restraining orders are available in North Carolina?
Domestic violence in North Carolina occurs when someone with whom you had a personal relationship commits violence against you, harasses you or places your household in fear of imminent harm.
There are two primary types of restraining orders a person can request in North Carolina related to domestic violence:
- Ex parte or temporary domestic violence protective order – Often called a 50B, this is an immediate court order that protects you or your family if they are in imminent harm. Someone who violates a 50B can be arrested. A complaint for a 50B is filed with a court, and a hearing is held within 10 days. The order lasts for 10 days, during which another hearing is held to determine whether a final domestic violence protective order should be issued.
- Final domestic violence protective order (DVPO) – Also known as a permanent 50B order or simply a restraining order, a DVPO is a permanent restraining order that can last for up to a year. The person named in the order is entitled to a hearing where they may defend themselves against the accusations. A DVPO offers all the protections of a temporary restraining order, and a person who violates its terms may be subject to arrest.
A violation of a domestic violence protective order is a misdemeanor crime punishable by up to 150 days in jail.
It is common for an individual going through the divorce process or battling over custody rights to face threats of violence. If you need to obtain a protective order or if you have been served with one, speak with one of our attorneys immediately.
Can I get a restraining order for reasons other than domestic violence?
Yes. A civil no-contact order (CNC), also called a 50C protective order, can protect someone who is threatened by a person with whom they have not had an intimate relationship. This includes family members, co-workers, colleagues, neighbors or random strangers who have exhibited threatening, harassing or stalking behavior. Like domestic violence orders, CNCs can be instituted in emergency situations before a hearing is held to determine whether they should be extended for a longer period of time.
What property can be divided during a divorce?
In North Carolina, only property acquired during a marriage is eligible for distribution to a separating spouse. Eligible property acquired during the marriage includes a wide variety of categories under North Carolina law, including:
- Income from work
- Income from 401(k)s and pension plans, including military pensions
- Life insurance proceeds that have cash value
- Savings accounts
- A house or real property
- A business that is founded in one spouse’s name
Unless a couple had a valid agreement to the contrary, the proceeds from any of those sources are considered assets either spouse can claim during a divorce. However, some property is not eligible for distribution during divorce. This includes:
- Gifts acquired during the marriage
- Inheritance acquired during the marriage
In North Carolina, inheritance and gifts to a specific spouse are not pooled with other marital assets even if they were acquired during the marriage. Also, property acquired during a legal separation is not considered part of the marital assets.
How are marital assets divided under North Carolina law?
North Carolina is an “equitable distribution” state. Property acquired during marriage is divided in proportion to what a court considers fair unless a prenuptial agreement states otherwise. The division is usually close to 50/50. Statutes in North Carolina list the factors a court must consider when making a decision regarding how to divide marital assets and allocate a certain percentage of the assets to a spouse. These factors include:
- Income, property and debts of both spouses
- Length of the marriage
- Whether one parent with child custody needs the marital residence
- Whether one party without title contributed to marital property the other acquired
- Tax effects of selling marital property
- Prior marriages for which one party already pays support
- Age and health of both parties
- Whether either party has a right to retirement or pension benefits outside of their marital assets
- Whether either party contributed to the career or education of the other
The court may consider other factors as well as anything it deems to be “just and proper” in making a decision. The broad scope a court can use to divide property requires experienced family law attorneys to fight on your behalf. Scott Law Offices provides seasoned legal counsel to get you the best deal possible.
How can a prenuptial agreement help?
A prenuptial agreement is a contractual arrangement between potential spouses that can allocate how property is to be divided if the marriage ends in divorce. Prenuptial agreements can be highly beneficial and reduce costly litigation. A valid prenup must be in writing and signed by both spouses. It also requires full and fair disclosure of the assets and debts of both parties; neither spouse may conceal their true net worth. The deal must also be reasonable for both parties. Courts may invalidate a prenuptial agreement that is unfair to one spouse, contains language not authorized by North Carolina law or is signed under coercion or duress. Speak with one of our attorneys to find out more about prenups and how they can work for you.