Maximum Result With Minimum Conflict
Whether you are anticipating the joys of adoption or experiencing the frustrations of marital conflict, Holt, Longest, Wall & Moseley, P.L.L.C., can help. Our family law attorney, W. Phillip Moseley, provides legal services in all areas of family law, including:
- Alimony and post-separation support
- Child custody and support
- Equitable distribution
No-Fault Divorce In North Carolina
North Carolina is a “no fault” divorce state. The grounds for absolute divorce are that you have been separated for one year, that one of the parties intended for the separation to be permanent, and that one of the parties has lived in North Carolina for at least six months. For more information, see North Carolina General Statute § 50-7, available at the North Carolina General Assembly Website.
What Is Legal Separation?
A legal separation can be accomplished in two ways: 1) a separation agreement or 2) divorce from bed and board.
1) SEPARATION AGREEMENT: A separation agreement is a contract between the parties and is subject to all the issues and claims of any contract. It must be in writing, signed by both parties, and notarized. If one of the parties does not agree, then there cannot be a separation agreement. The agreement may include:
- The right to buy and sell property without the joinder of the other party
- The right to see whomever you wish as if unmarried
- Payment, or waiver of payment, of alimony
- Division of property (including retirement plans)
- Division of debt
- Custody and visitation
- Child support
- Filing tax returns and dividing refunds
- All other issues of importance to the clients
2) DIVORCE FROM BED AND BOARD: If one of the parties in a marriage has committed marital fault (and the parties cannot reach agreement or the injured party desires the protection of the court), then the other party may bring an action for divorce from bed and board. See North Carolina General Statute § 50-7. A divorce from bed and board is not an absolute divorce but merely a court-supervised separation.
Alimony Or Post-Separation Support?
Generally, a dependent spouse is entitled to an award of post-separation support from the supporting spouse based upon the resource, estates, and standard of living of the parties. A judge will consider the marital fault of both parties.
Post-separation support is usually viewed as a temporary payment until the issues of permanent alimony and equitable division of marital property can be resolved. See North Carolina General Statute § 50-16.1A.
“Alimony” means a payment made by the supporting spouse to the dependent spouse. The payment can be made periodically (e.g., monthly) or in a lump sum. The payment can be for an indefinite period or for a specified period. Unfortunately, there are no real guidelines for the payment of alimony, and alimony varies greatly from county to county and from judge to judge within counties. Alimony is based upon marital misconduct AND dependency. Please see North Carolina General Statute § 50-16.3A.
How Is Child Custody And Support Determined?
The polar star that guides all considerations of custody is the welfare of the child. For two parents who are both deemed fit to care for their child, there is a strong presumption for joint legal custody. Actual physical placement (the time a child is placed in one parent’s care) may depend upon the work schedule of the parties.
Other factors that the court may consider include:
- Which parent best relates to the child’s age?
- Which parent best relates to the child’s gender?
- Which parent best provides better physical living conditions for the child?
- Which parent provides a personal bedroom for the child?
- Which parent provides the better home size?
- Which parent lives in the better neighborhood for the child?
- Which parent lives in closer proximity to school?
In North Carolina, child support is calculated based on the income of each parent, the child care expenses, the number of children, the requirement to support other children outside this union, and health insurance costs. There may be further consideration for extra expenses, such as private tuition, extracurricular activities, etc.
How Does Equitable Distribution Work?
Upon application by either party by separate action or in conjunction with an action or in conjunction with an action for absolute divorce or for divorce from bed and board, the court will determine what is marital property and divisible property and provide for an equitable distribution of the marital and divisible property. This distribution is controlled by North Carolina General Statute § 50-20, as well as hundreds of cases interpreting the statute. Please be aware that if either party obtains an absolute divorce before a proper claim for equitable distribution is filed, then the claim for equitable distribution is forever barred.
“Marital property” means all real (house and land) and personal (cars, furniture, retirement plans, 401(k), etc.) property acquired by either or both spouses during the course of the marriage and before the date of separation. “Divisible property” means property that was paid out or increased (or decreased) in value after separation, but the efforts in producing the property were performed during the marriage.
Excluded by statute is the “separate property” of the parties. Separate property is the property acquired before marriage or after separation, as well as property obtained by gift from other people or inheritance.
“Equitable” means fair, and an equal division is presumed to be fair, but the statute goes on to provide a dozen exceptions to an equal division. Most notably, the exceptions apply when: one party has substantially more income than the other, one party has more retirement benefits than the other, one party has a larger separate estate than the other, and/or one parent with custody has a true need to occupy the marital residence.
Experienced trial lawyers know what judges usually do with a given set of facts based upon the rulings of the trial and appellate courts. Therefore, most cases can be settled.
Problems occur with the evaluation of professional practices, business properties, and closely held corporations. In these cases, it is necessary to retain expert appraisers and certified public accountants.