An absolute divorce in North Carolina is also known as a “no-fault” divorce. The bonds of matrimony can be dissolved upon the application of either party after Husband and Wife have been legally separated for a period of one (1) year. Neither spouse is required to prove marital misconduct to obtain a divorce. North Carolina also requires a minimum sixth month residency period and a showing that, at the time of separation, at least one of the spouses intended the separation to be permanent.
Alimony and Post Separation Support
In order for alimony or postseparation support to be awarded, the courts must first be given proof that there is a need for spousal support. There is no set formula or guideline calculation for post separation support and alimony. As to post separation support, North Carolina General Statutes § 50-16.2A provides the following:“In ordering post separation support, the court shall base its award on the financial needs of the parties, considering the parties accustomed standard of living, the present employment income and other recurring earnings of each party from any source, their income-earning abilities, the separate and marital debt service obligations, those expenses are reasonably necessary to support each of the parties, and each party’s respective legal obligations to support any other persons.”
As to alimony, North Carolina General Statutes § 50-16.3A provides a list of sixteen (16) factors that the court looks at in determining and calculating an alimony award. Some of the factors include:
- Marital misconduct of either of the spouses
- Relative earning capacities of the spouses
- The ages and the physical, mental, and emotional conditions of the spouses
- Duration of the marriage
- Contribution by one spouse to the education, training, or increased earning power of the other spouse
- Standard of living the spouses are accustomed to and established during the marriage
- Property brought to the marriage by either spouse
- Contribution of a spouse as homemaker
- Any other factor relating to the economic circumstances of the parties that the court finds to be just and proper
If a supporting spouse has committed an act of illicit sexual behavior, the dependent spouse is entitled to alimony. If the dependent spouse has committed an act of illicit sexual behavior prior to the parties’ separation, he or she will be barred from receiving alimony. If both spouses have committed acts of illicit sexual behavior during the marriage prior to a separation, then a judge must decide if the dependent spouse is entitled to receive alimony.
In North Carolina, premarital agreements are governed by the Uniform Premarital Agreement Act found in Chapter 52B of the North Carolina General Statutes. A premarital agreement is an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage. Premarital agreements must be in writing and signed by both parties. You and your prospective spouse may contract with respect to any rights you may have in the property of the other, how your property will be distributed in the event you separate, whether you or spouse will be entitled to receive alimony, and any other matter that is not in violation of public policy. If you are thinking about getting married, you may need to decide whether a premarital agreement is right for you.
Post Nuptial Agreements
Husbands and wives can contract with each other during the marriage with respect to matters that are not inconsistent with public policy. The courts a have determined that Post-Nuptial Agreements made during the marriage which waive the right of a dependent spouse to support from his or her spouse is void as against public policy. However, the law does permit spouses to contract with each other with respect to the disposition of both their real and personal property acquired during the marriage. §52-10 of the North Carolina General Statutes permits husbands and wives to release and quitclaim rights that they might acquire during the marriage in the property of the other, with or without valuable consideration.
Separation and Property Settlement Agreements
The State of North Carolina does not require any specific paperwork to be filed in order to be separated. However, when parties decide to separate, it is beneficial to have a legal contract in place that formalizes the separation. These contracts are commonly known as separation agreements. A separation agreement may simply acknowledge the parties’ intent to live separate and apart. It may also set forth various provisions such as a free trader clause, which allows a party the right to buy or sell real estate without the other party’s knowledge or consent, and a mutual waiver of the right to inherit from one another. Additionally, separation agreements are commonly used to formalize mutually agreed upon terms for settlement. If parties have reached a resolution regarding terms of alimony, child custody, child support, property division, responsibility for joint debts, and any other issues arising out of the marriage, these terms can be incorporated into the agreement. Settlement of disputed issues is generally preferable to litigation. If you and your spouse can agree to the terms of your separation and property division, then a separation and property settlement agreement may be the best option for you.
Equitable Distribution of Property and Debts
During a marriage, husbands and wives generally acquire property, including but not limited to a home, cars, bank accounts, a business, IRA’s or stock options. North Carolina law provides for the division and distribution of this property. Once a couple has separated, either party may ask the court for an “equitable distribution” which is the process of identifying, classifying, evaluating and distributing property. This process can be one of the most challenging areas of family law and it forces lawyers and judges to confront difficult and diverse issues. Hence, the process of equitable distribution takes organization, patience, time, problem solving skills, and the involvement of other competent professionals such as appraisers and accountants.
One of the most hotly litigated issues that can arise during a divorce is child custody and visitation. North Carolina law provides that custody determinations are to be made under the “best interests of the child” standard. No presumption exists between a mother and a father as to who better promotes the best interest of the child.After hearing evidence, the judge (not a jury) will decide how the parents, will make major decisions affecting the childrens’ lives and will establish an appropriate residential schedule for the children. “Joint custody” describes a joint decision-making arrangement whereby both parents make major decisions for the children. Typically, one parent will be designated as having primary physical custody with the other parent having secondary physical custody. A typical residential schedule for a parent having secondary physical custody provides that he or she will have the children on alternate weekends, one-half of the school holidays, and several weeks in the summer. It is not uncommon for the secondary physical custody parent to receive some mid-week visitation as well. Keep in mind, there is no set schedule, and courts welcome mutually agreeable residential agreements. These arrangements can change depending on the ability of the parties to communicate and work together as well as the age and development of the child.
The Law Office of Kimberly Lee, PLLC can help with your custody dispute and work to ensure that the best interest of the children is served. We seek to resolve the contested issues without the need for litigation if at all possible consistent with the client’s objectives. However, if litigation becomes necessary we will provide effective and aggressive representation.
In North Carolina, parents have a legal duty to financially support their children until they reach 18 years of age and have graduated from high school. Child support arrangements must be fair for both the child and the parents. The amount of support each parent is obligated to pay is generally based upon the proportion his or her income contributes toward the total income of the parties. In most cases, the amount of child support a parent is obligated to pay is calculated according to the North Carolina Child Support Guidelines. In certain circumstances, these guidelines do not apply, and in those cases, child support will be calculated based upon the needs of the child and the ability of the parents to pay support.
Modification of Child Support and Custody Orders
If there have been substantial changes in the needs of your children since entry of your child support Order resulting in a need for more or less support or if you feel as though you can no longer afford your child support payments, you may move to modify the child support Order. Child custody modification can be sought for many reasons, such as: change in child’s needs, interest, or activities as the child matures, relocation of a parent making the current schedule impractical, significant change in either parent’s work schedule, or situations of domestic abuse.
Domestic Violence or Abuse
Domestic violence is a problem that does not discriminate; it is statistically consistent across all socio-economic and racial lines. Victims of physical or emotional domestic abuse may seek protection under Chapter § 50-B of the North Carolina General Statutes. Chapter § 50-B of the North Carolina General Statutes allows domestic violence victims to seek an order of protection against an offender with whom the aggrieved party has or had a familial relationship (current or former spouse, persons of the opposite sex with whom you have lived, parents, grandparents, etc.). Once immediate safety has been obtained for you and your children, you should seek the assistance of a family law attorney to obtain a Domestic Violence Protective Order to keep the abuser away from you and to obtain an order granting you temporary custody and financial support. Criminal remedies are also available.
Enforcement of Orders and Agreements
If an Order has already been entered by the court, but the opposing party refuses to comply with the provisions of the Order, it may be enforced through contempt proceedings in which the court will assess whether the party violated the court order and then may enter sanctions, fines, imprisonment, attorney’s fees etc. depending upon the Judge’s findings and determinations. A separation agreement that has not been incorporated into a court Order is not enforceable by contempt proceedings. However, such unincorporated agreements are contracts which can be enforced in the same manner as any other contract through an action for breach of contract and monetary damages. The equitable remedy of specific performance may also be available.
Many times, divorce and other family matters can be resolved through mediation. A mediator can assist both parties to find a mutually agreeable approach to settlement. Mediation can reduce the expenses of divorce, as well as place control in the hands of the parties themselves, rather than the judge.
Adoption is the legal process of establishing a parent/child relationship. The biological parent(s) relinquish their parental rights and responsibilities and the adoptive parent(s) acquire these parental rights and responsibilities. Adoptions in North Carolina are regulated by statutes intended to advance the best interests of the adoptive child and the process is quite detailed. The Law Office of Kimberly Lee, PLLC can provide effective legal advice and support as we guide you through the adoption process.
Termination of Parental Rights
A parent has a constitutionally protected right to the custody, care, and control of his or her children. When a parent abandons those rights and responsibilities, the court may take the permanent action of terminating that person’s parental rights. A petition to terminate parental rights is often filed by a parent whose new spouse wishes to adopt the child or by the Department of Social Services when a child has been abused or neglected. The petition must establish that termination of parent rights will be in the best interests of the child. If the petition to terminate parental rights succeeds, the legal relationship between the subject parent and child ends permanently.