FAQs

Several. The dissolution of a marriage can instigate a number of possible civil causes of action. They are classified as:

  1. Equitable Distribution (Division of Property);
  2. Post-separation support;
  3. Divorce from bed and board;
  4. Child custody and visitation;
  5. Child support;
  6. Alimony;
  7. Absolute Divorce; and
  8. Domestic Torts (Alienation of Affections, Criminal Conversation, Assault, Battery, Intentional Infliction of Emotional Distress, Fraud and others).

The first step is the preparation and filing of a complaint. This document notifies the court and your spouse, when served, that you want the court to end your marriage. It also lists your requests, such as child custody, child visitation, child support, spousal support, property division, attorney’s fees and costs.

After the complaint is filed, the defendant must be served with a copy of the complaint. The defendant has thirty (30) days from the date of service of the complaint to serve an answer. If the defendant requests an extension, it is common for that party to be granted an additional thirty (30) days to serve an answer. The defendant may raise a counterclaim that is a part of the same pleading containing the answer. If the defendant files a counterclaim, the plaintiff must serve a reply within thirty days (or sixty days if an additional thirty day extension is granted).

Unless both parties agree on all matters, a trial may be necessary on one or more claims. Even after the complaint is filed, some or all of the case may be resolved by agreement. A lawsuit is not always necessary. Most cases are resolved by agreement either before or after a lawsuit is filed.

Each spouse is entitled to information from the other about the case. This is called discovery, and it may be a simple, speedy process or one consuming a great deal of time, energy and money.

There are several different discovery procedures, sometimes referred to as discovery devices. A list of questions known as interrogatories, requiring a formal, sworn written answer to each question, may be sent. Each party may obtain documents from the other by serving a request for production of documents. The request for production of documents, however, is not limited to just documents, a request may also ask that tangible items be produced such as photographs, email, computer hard drives and the like. Requests for admission may also be served. A request for admission asks the recipient to admit the truth of a particular fact or facts. The purpose of requests for admission is to resolve disputed questions of fact prior to trial. In a deposition, or examination before trial, the spouses and other persons, including experts, may be required to answer questions under oath in a lawyer’s office. If your deposition is to be taken, there will be advance notice and your lawyer will discuss the procedure with you.

North Carolina courts use the “best interest of the child” standard when making a determination in child custody cases. 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.

If a custody action is filed, the parties will be required to participate in mediation with a trained professional mediator before the case is placed on a trial docket. The mediator, while having no authority to impose a custody arrangement, will attempt to facilitate an agreement between the parties. If an agreement is reached in mediation, it will be reduced to writing and entered by the court as an order after the parties are given an opportunity to review the written agreement with their respective attorneys.

In almost every case, one parent will be ordered to provide monthly child support payments to the other parent. The court will probably calculate child support using the North Carolina Child Support Guidelines if the combined pretax annual incomes of both parents total $300,000 or less. Although the parents must file financial affidavits of expenses for themselves and children, the guidelines are generally based on the combined gross incomes of the parties and the number of nights that the children spend with each parent. A judge is permitted to deviate from the guideline amounts, but only if extraordinary circumstances warrant such a deviation. Judges without juries hear child support cases.

Child support continues until the child reaches age 18, unless the child is legally emancipated. Emancipation is a rare legal status that must be obtained by a minor through a specific court procedure resulting in a decree of emancipation. If the child is attending primary or secondary school when he or she reaches age 18, the court will order support payments to continue until graduation unless the child otherwise ceases to attend school on a regular basis, or reaches age 20, whichever occurs first. A parent may agree to pay child support beyond these time periods but, absent such an agreement between the parents, the court does not have the authority to require a parent to pay for a child’s college education. A court also does not have the authority to require a parent to maintain life insurance for the benefit of a child.

In cases where the income of both parents exceeds $300,000 annually, the North Carolina Child Support Guidelines do not apply. In these instances, child support shall be based on the reasonable needs of the child and the relative ability of each parent to provide support.

Child custody and child support are both issues that can be raised for the first time as an initial claim and raised again if a parents seeks to change the initial child support or custody order. A motion to modify a prior custody or child support order can be made any time before the age limits described in No. 5 above, “How is child support determined?” Modification of a child custody or child support order is usually based on a showing by the moving party of a substantial change of circumstances that has an effect on the children. The effect of the change in circumstances does not necessarily have to be negative.

Unlike post-separation support and alimony, child support is not taxable as income to the recipient parent and is not a tax deduction to the payor parent.

Generally, you are allowed one exemption for each person you can claim as a dependent. The general rule for a child of divorced or separated parents is that the parent who has custody of the child for the greater part of the tax year (i.e. the custodial parent) is treated as the parent who provides more than half of the child’s support and is thus entitled to the exemption for the child. The non-custodial parent, however, will be treated as providing more of the child’s support under two circumstances. First, if the custodial parent signs a written declaration that he or she will not claim the exemption for the child, and the non-custodial parent attaches this declaration to his or her return, then the non-custodial parent can claim the exemption for the child. Second, if the custodial parent signs a decree or agreement that states he or she will not claim the exemption for the child, then the non-custodial parent can claim the child without regard to any condition, such as payment of support.

In certain situations, you may also be able to claim a credit for child care expenses. You may be able to claim the credit if you pay someone to care for your child (under age 13).  This credit can be up to 30% of your expenses. In order to qualify, you must pay these expenses so that you can work or look for work. Generally, to be a qualifying person for the child care tax credit, your child must be a dependent for whom you can claim an exemption. If you are divorced or separated, an exception to this rule may apply. Under this exception, if you are the custodial parent of your child, you can treat your child as a qualifying person even if you are unable to claim the exemption for the child. If, however, you are the non-custodial parent, you cannot treat your child as a qualifying person, regardless of whether you can claim the child’s exemption or not.

For more information on this topic you can visit www.irs.gov

(a) Entitlement.  – In an action brought pursuant to Chapter 50 of the General Statutes, either party may make a claim for alimony. The court shall award alimony to the dependent spouse upon a finding that one spouse is a dependent spouse, that the other spouse is a supporting spouse, and that an award of alimony is equitable after considering all relevant factors, including those set out in subsection (b) of this section. If the court finds that the dependent spouse participated in an act of illicit sexual behavior, as defined in G.S. 50-16.1A(3)a., during the marriage and prior to or on the date of separation, the court shall not award alimony. If the court finds that the supporting spouse participated in an act of illicit sexual behavior, as defined in G.S. 50-16.1A(3)a., during the marriage and prior to or on the date of separation, then the court shall order that alimony be paid to a dependent spouse. If the court finds that the dependent and the supporting spouse each participated in an act of illicit sexual behavior during the marriage and prior to or on the date of separation, then alimony shall be denied or awarded in the discretion of the court after consideration of all of the circumstances. Any act of illicit sexual behavior by either party that has been condoned by the other party shall not be considered by the court.

The claim for alimony may be heard on the merits prior to the entry of a judgment for equitable distribution, and if awarded, the issues of amount and of whether a spouse is a dependent or supporting spouse may be reviewed by the court after the conclusion of the equitable distribution claim.

(b) Amount and Duration. – The court shall exercise its discretion in determining the amount, duration, and manner of payment of alimony. The duration of the award may be for a specified or for an indefinite term. In determining the amount, duration, and manner of payment of alimony, the court shall consider all relevant factors, including:

  1. Marital misconduct which includes: Acts of sexual or deviate sexual intercourse or deviate sexual acts voluntarily entered into by a spouse with someone other than the other spouse;
  2. Imprisonment resulting from a criminal act committed prior to the proceeding in which alimony is ought;
  3. Abandonment;
  4. Malicious turning out-of-doors of the other spouse;
  5. Cruel or barbarous treatment endangering the life of the other spouse;
  6. Indignities rendering the condition of the spouse intolerable and life burdensome;
  7. Reckless spending of the income of either party, or the destruction, waste, diversion, or concealment of assets;
  8. Excessive use of alcohol or drugs so as to render the condition of the other spouse intolerable and life burdensome;

 

Economic and other factors other than marital misconduct are also considered:

  1. Relative earnings and earning capacities of the spouses;
  2. Ages and the physical, mental, and emotional condition of the spouses;
  3. Amount and sources of earned and unearned income of both spouses, including, but not limited to earnings, dividends, and benefits such as medical, retirement, insurance, social security, or other;
  4. Duration of the marriage;
  5. Contribution by one spouse to the education, training, or increased earning power of the other spouse;
  6. 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;
  7. Accustomed standard of living of the family established during the marriage;
  8. 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;
  9. Relative assets and liabilities of the spouses and the relative debt service requirements of the spouses, including legal obligations of support;
  10. Property brought to the marriage by either spouse;
  11. Contribution of a spouse as homemaker;
  12. Relative needs of the spouses;
  13. Federal, state, or local tax ramifications of the alimony award;
  14. Any other factor relating to the economic circumstances of the parties that the court finds to be just and proper;
  15. The fact that income received by either party was considered by the court in determining the value of an asset in a hearing on equitable distribution.

Acts of marital misconduct must occur prior to the parties’ separation if evidence of those acts is to be admissible in an alimony or post-separation hearing. However, post-separation marital misconduct evidence may be used to corroborate evidence that marital misconduct occurred prior to the separation.

Either party has the right to have a jury decide the marital fault issues at an alimony trial but the judge must determine the appropriate alimony amount, if any. The judge may order alimony payable until either party dies or until the dependent spouse remarries or cohabits. The judge may limit the duration of the alimony award to a specific time period. In some cases, a judge may order rehabilitative alimony for a period of time sufficient to allow the dependent spouse to obtain additional education to return to the workplace. Generally, the longer the marriage, the longer the duration of an alimony award.

Termination of Alimony

The court has a great deal of discretion in determining the amount and duration of alimony. The court may make an alimony award for a specified or an indefinite time period. If alimony is awarded for an indefinite time, it must terminate on the death of either party and on the remarriage or cohabitation of the dependent spouse.

N.C. Gen. Stat. § 5016.2A.  Postseparation support, provides as follows:

  1. In an action brought pursuant to Chapter 50 of the General Statutes, either party may move for post-separation support. The verified pleading, verified motion, or affidavit of the moving party shall set forth the factual basis for the relief requested.
  2. 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 reasonably necessary to support each of the parties, and each party’s respective legal obligations to support any other persons.
  3. Except when subsection (d) of this section applies, a dependent spouse is entitled to an award of post-separation support if, based on consideration of the factors specified in subsection (b) of this section, the court finds that the resources of the dependent spouse are not adequate to meet his or her reasonable needs and the supporting spouse has the ability to pay.
  4. At a hearing on post-separation support, the judge shall consider marital misconduct by the dependent spouse occurring prior to or on the date of separation in deciding whether to award post-separation support and in deciding the amount of post-separation support. When the judge considers these acts by the dependent spouse, the judge shall also consider any marital misconduct by the supporting spouse in deciding whether to award post-separation support and in deciding the amount of post-separation support.
  5. Nothing herein shall prevent a court from considering incidents of post date-of-separation marital misconduct as corroborating evidence supporting other evidence that marital misconduct occurred during the marriage and prior to date of separation.

A divorce from bed and board is often a misunderstood term. A divorce from bed and board is a judicial separation granted by a court. It is not an absolute divorce and has certain limitations. A divorce from bed and board may be granted if either party:

  1. Abandons the family;
  2. Maliciously turns the other spouse out of doors;
  3. Treats the other spouse in a cruel and barbarous manner; endangering his or her life;
  4. Offers indignities to the person of the other spouse, rendering his or her condition intolerable and life burdensome;
  5. Uses drugs or alcohol in excess; or
  6. Commits adultery.  (N.C. Gen. Stat. §50-7)

In North Carolina, absolute divorces are almost always obtained on the basis of one year’s separation. After spouses have lived separate and apart continuously for one year, with the intent of at least one of the spouses not to resume the marital relationship and without actually resuming the marital relationship, either spouse may obtain an absolute divorce. Sleeping in separate bedrooms is not a separation for purposes of absolute divorce. Attempts at reconciliation marked by isolated instances of sexual intercourse will not automatically end the period of continuous separation; however, instances of sexual intercourse and nights spent together may add to the totality of circumstances sufficient to cause a court to find that the parties have voluntarily renewed the marital relationship. If it is determined that spouses have renewed the marital relationship, the twelve-month clock will be reset.

Classification of Property

Unless the spouses agree upon a marital property division, the court will divide the property pursuant to North Carolina statutes on equitable distribution. There are three (3) types of property that must be considered, which are as follows:

  1. “Separate Property” includes all property owned by either spouse before the marriage, property acquired during the marriage by one spouse by inheritance or gift from a person other than the spouse, and property acquired after the date of separation with post-separation earnings. A gift from one spouse to the other during the marriage is marital property unless the donor states at the time of the conveyance that it is intended to be the separate property of the recipient spouse. Separate property also includes income from separate property and property obtained in exchange for separate property.“Marital Property” includes all other property owned on the date of separation that was acquired during the marriage. Marital property includes all vested and non-vested pension and retirement benefits.
  2. “Divisible Property” includes passive appreciation and depreciation in the value of marital property after separation, property received after date of separation but resulting from efforts made during the marriage, and passive income received from martial property after date of separation.

Division of Property

Unless the parties agree to the division of marital and divisible property, an equitable distribution hearing will be necessary. This hearing may occur after separation but either before or after the absolute divorce and will be conducted by a judge without a jury. Separate property will be kept by the spouse to whom it belongs while marital and divisible property and debt will be divided between the parties by the court. While there is no precise formula for dividing the property, there is a presumption in North Carolina that the marital and divisible property or its equivalent value, will be divided equally and that the property will be divided in-kind.

  1. Income, property and debts of a party;
  2. Support obligations from prior marriages;
  3. Length of marriage and age and health of each party;
  4. Needs of custodial spouse to own or to possess the marital home place and household effects;
  5. Expectation of retirement benefits which are separate property;
  6. Efforts made by a spouse to acquire marital property not titled in his or her name;
  7. Contributions of one spouse to the education or career of the other;
  8. Direct contributions that increase the value of separate property;
  9. Liquid or non-liquid nature of property;
  10. Difficulty in valuing interest in a business;
  11. Tax consequences to each party;
  12. (a)Actions taken by either party to preserve or waste marital assets; and
    (b)Property received in the event of death of either party prior to equitable distribution;
  13. Any other factor which the court finds to be just and proper.

Debt

Marital debts must also be divided between the spouses. The court is not bound to divide debts in the same percentage as it divides assets. The court must consider the purpose for which the debt was incurred and the disposition of any asset encumbered by the debt. If one party establishes that a debt was incurred during the marriage, the other party has the burden of proving to the court the debt was not incurred for a marital purpose, but for the individual separate expense of the other spouse. Post-separation increases in marital debt financing charges and interest related to marital debt are classified as divisible debt and will also be equitably divided by the court.

Marital Misconduct and Division of Property

Marital misconduct, such as adultery, is not admissible in the litigation of property rights. The division of property in North Carolina is based upon the economic factors described above. However, evidence of “economic fault” is admissible. Such evidence may be of marital funds spent by one spouse in the course of illicit sexual behavior during the marriage with a third party, reckless spending or waste of marital assets.

Tax Consequences

Generally, a division of marital property is a non-taxable event. Usually, if property is transferred between spouses pursuant to an agreement or court order, it will neither be taxed as income nor allowed as a deduction. There may be tax consequences, however, when funds are transferred from retirement and individual retirement accounts and when marital assets are transferred to third parties. There are ways to transfer retirement assets without incurring immediate tax liability. Some qualified retirement plans will require a special court order specifically designed to transfer plan assets. The court orders are called “Qualified Domestic Relations Orders” (sometimes referred to as “QDRO’s”). All property distribution matters must be analyzed by your attorney for tax consequences.

Mediation

If a claim is filed for equitable distribution, the parties will be required to first participate in mediation with a trained professional mediator before the claim may be litigated in court.

If a trial is necessary, one spouse may be ordered to pay some portion of the other spouse’s legal fees. The court can award attorney fees to compensate for legal fees you incurred for the custody, child support, and spousal support claims but not for the divorce from bed and board, absolute divorce, and equitable distribution claims. The court has wide discretion in making such awards in permissible cases and it may award some, all or none of these fees to an otherwise eligible party.

Although it may not be a basis for awarding or declining to award alimony, post-separation adultery can be used as corroborating evidence to support the allegation that adultery occurred prior to the separation. In North Carolina, it is possible for a spouse to bring a lawsuit against someone who has alienated the affections of and/or had sexual relations with a spouse’s husband or wife. The adultery cause of action is called criminal conversation. Any extramarital affairs or dating relationships on the part of either party should be brought to the attention of your attorney so that he or she may advise you of the law in this area.

If you and your spouse agree to the terms of your separation and property division, you may enter into a “Separation and Property Settlement Agreement” which is a legal contract that provides for the terms of your separation including but not limited to child custody, child support, property division, responsibility for joint debts, and alimony provisions.

There are other methods of resolving your case without resorting to the courts. These methods are called alternative dispute resolution (ADR) and include mediation and arbitration.

a. Mediation

In mediation, the parties meet with an impartial mediation specialist for the purpose of helping them reach an agreement. It is important to have independent representation throughout this process. The parties should consult with their own lawyers about mediation and the legal ramifications of any proposed agreement. Mediation is required for child custody and equitable distribution in the State of North Carolina. Mediation is not binding and if the parties cannot agree or reach an impasse, they then proceed on with their case in the normal litigation process.

 

b. Arbitration

The spouses may agree to submit some or all of their disputes to an arbitrator, a person chosen to decide the issues that the parties present. An arbitrator will have special training and qualifications and will make a decision which is binding on the parties. The arbitrator’s decision can be confirmed as an enforceable court judgment.

adminFrequently Asked Questions