Absolute Divorce: An absolute divorce is what is commonly referred to as “divorce.” An absolute divorce can only be obtained by a judgment of the court finding that all of the legal requirements have been met. Remarriage is legally impossible until an absolute divorce judgment has been entered.
Accustomed Standard of Living: The standard of living to which the dependent spouse and children became accustomed during the last several years prior to the separation of the spouses.
Adoption: To take into one’s family the child of another and give him or her the rights, privileges and duties of a child and heir.
Alimony: Alimony is financial support provided to a spouse or former spouse by his or her former spouse. If alimony is awarded by a court it will terminate in the event of the death of either spouse, the remarriage of the recipient spouse or the cohabitation of the recipient spouse in a relationship which has the economic and other characteristics of marriage. If alimony is awarded, it can later be reduced or increased based on a showing of a change in circumstances justifying the modification.
Annulment: An annulment is an action to set aside a marriage based upon certain limited legal deficiencies.
Answer: The pleading in which the defendant responds to the allegations made in the plaintiff’s complaint initiating the lawsuit. As a general rule, the Answer must be served within thirty (30) days of service of the Complaint, although an extension of thirty (30) days can be obtained automatically.
American Academy of Matrimonial Lawyers (“AAML”): The American Academy of Matrimonial Lawyers was founded in 1962, by highly regarded domestic relations attorneys “To encourage the study, improve the practice, elevate the standards and advance the cause of matrimonial law, to the end that the welfare of the family and society be protected.” There are currently almost 1600 Fellows in 50 states.
The Academy Fellows are highly skilled negotiators and litigators who represent individuals in all facets of family law. These areas include divorce, annulment, prenuptial agreements, postnuptial agreements, marital settlement agreements, child custody and visitation, business valuations, property valuations and division, alimony, child support and other family law issues. The North Carolina Chapter of the AAML currently has 35 active members across the state.
Arbitration: The process by which parties agree to resolve their disputes outside of court, using the services of an experienced third party arbitrator who is authorized by the parties to make decisions about the resolution of the issues. Arbitration is governed exclusively by the parties’ agreement to arbitrate and the arbitrator’s decision is usually binding upon the parties.
Board Certified Family Law Specialist: Board certification of lawyers as specialists by the North Carolina State Bar protects the public by providing relevant, truthful, and reliable information to consumers of legal services. Board certification helps consumers to identify lawyers who have experience and skill in a certain area of practice and provides lawyers with a legitimate way of informing the public and other lawyers of this expertise. Although the requirements vary from one specialty area to the next, the minimum standards for certification as a specialist include the following: (1) the applicant must be licensed and in good standing to practice law in North Carolina; (2) the applicant must be substantially involved in the practice area, usually for a minimum of five years; (3) the applicant must take a certain number of continuing legal education credits in the specialty area during the three years prior to application; (4) the applicant must make a satisfactory showing of qualification in the specialty through peer review; and (5) the applicant must achieve a satisfactory score on a written examination in the practice area.
Child Support: In child support cases where the combined gross incomes of the parents do not exceed $300,000 per year, a court is likely to refer to a table of pre-calculated child support numbers called the North Carolina Child Support Guidelines to determine the amount of support. Although the court may deviate from these guideline amounts, they are presumptive and typically heavily relied upon by the court in arriving at an appropriate child support award. A party may request a deviation from the Guidelines under certain circumstances. If child support has already been set in a court order, either party may seek to modify that order based on a substantial change of circumstances.
Civil No-Contact Order: Upon a finding that the victim has suffered unlawful conduct committed by the respondent, including nonconsensual sexual conduct, including a single incident of nonconsensual sexual conduct or stalking the court may issue a temporary or permanent civil no contact order. Physical injury to the victim is not required to obtain the order.
COBRA: Congress passed the landmark Consolidated Omnibus Budget Reconciliation Act (COBRA)(1) health benefit provisions in 1985. COBRA contains provisions giving certain former employees, retirees, spouses and dependent children the right to temporary continuation of health coverage at group rates. This coverage, however, is only available in specific instances and for specific time periods. Group health coverage for COBRA participants is usually more expensive than health coverage for active employees, since usually the employer formerly paid a part of the premium. It is ordinarily less expensive, though, than individual health coverage. The law generally covers group health plans maintained by employers with 20 or more employees in the prior year. It applies to plans in the private sector and those sponsored by state and local governments; (2) The law does not, however, apply to plans sponsored by the federal government and certain church-related organizations.
Cohabitation: The act of two adults dwelling together continuously and habitually in a private heterosexual relationship, even if this relationship is not solemnized by marriage, or a private homosexual relationship. Cohabitation is evidenced by the voluntary mutual assumption of those marital rights, duties and obligations which are usually manifested by married people, and which include but are not necessarily dependent upon, sexual relations. Cohabitation may be relevant to the issue of alimony entitlement.
Collaborative Law: An alternative to judicial disposition of issues arising in a civil action. In a collaborative law process a husband and wife who are separated and are seeking a divorce, or are contemplating separation and divorce, and their attorneys agree to use their best efforts and make a good faith attempt to resolve their disputes arising from the marital relationship on an agreed basis. The procedure includes an agreement by the parties to attempt to resolve their disputes without having to resort to judicial intervention, except to have the court approve the settlement agreement and sign the orders required by law to effectuate the agreement of the parties. The procedure also includes an agreement where the parties’ attorneys agree not to serve as litigation counsel, except to ask the court to approve the settlement agreement. In the event that the collaborative law process is not successful, each party will be required to retain independent litigation counsel.
Complaint: The pleading filed by the plaintiff initiating a lawsuit. It is a request for relief from the court, and sets out the issues that the plaintiff wants the court to resolve.
Consent Order: An agreement of the parties that is memorialized as a court order bearing the signature of a judge. Consent Orders are generally treated as enforceable by contempt.
Contempt (Civil): A civil contempt of court generally arises from a willful failure to comply with an order of court such as a failure to pay child support as contrasted with criminal contempt which consists generally of unacceptable conduct in the presence of the court. Punishment for civil contempt may be a fine or imprisonment, the object of such punishment being to coerce compliance with the order of the court.
Counterclaim: The pleading in which the defendant requests relief against the plaintiff. It is essentially the defendant’s complaint against the plaintiff in the same lawsuit brought by the plaintiff.
Custody Order: The terms of custody may be set out in an order of the court either by agreement of the parties (Consent Order for Custody) or by the decision of a judge (Custody Order). Either party may seek to modify a custody order based on a substantial change of circumstances that affects the welfare of the child.
Date of Separation: The date of a physical residential relocation of one spouse with the intention of at least one spouse that the separation be permanent.
Dependent Spouse: The spouse who, for the purposes of post-separation support or alimony, is determined to either be actually substantially dependent on the other spouse for financial support or substantially in need of financial support to maintain a certain pre-separation lifestyle.
Distributive Award: A monetary award to equalize a distribution of property between divorcing spouses. For example, if divorcing parties cannot or do not want to split an asset like real property or a business, the spouse receiving the asset may be required to pay a distributive award to the other spouse to compensate him or her for his or her marital interest in the real property or business.
Divisible Property: Divisible property includes passive increases and decreases in the value of marital property, such as interest and dividends that occur after the date of separation. For example, interest accrued on a marital bank account after the date of separation is divisible property. An increase in value of real property owned during the marriage is divisible property, to the extent that the increase in value is the result of passive economic factors such as a general increase in property values. It also includes any property received after the date of separation which a party had a right to before the separation and which was acquired as the result of efforts of either or both parties during the marriage. An example of this is a commission or bonus received by a party after the date of separation, but earned prior to separation. Increases in marital debts related to financing charges and interest accrued since the date of separation are also divisible property. How the court will distribute divisible property is based on whether the increase in value of marital property is the result of passive conditions (no effort by the parties) or active conditions (effort by the parties.)
Divorce from Bed and Board: A judicial separation that is an authorized separation of the husband and wife. Such a divorce merely suspends the effect of the marriage as to cohabitation but does not dissolve the marriage bond.
Domestic Trespass: (a) Any person who enters after being forbidden to do so or remains after being ordered to leave by the lawful occupant, upon the premises occupied by a present or former spouse or by a person with whom the person charged has lived as if married, shall be guilty of a misdemeanor if the complainant and the person charged are living apart; provided, however, that no person shall be guilty if said person enters upon the premises pursuant to a judicial order or written separation agreement which gives the person the right to enter upon said premises for the purpose of visiting with minor children. Evidence that the parties are living apart shall include but is not necessarily limited to:
1. A judicial order of separation;
2. A court order directing the person charged to stay away from the premises occupied by the complainant;
3. An agreement, whether verbal or written between the complainant and the person charged that they shall live separate and apart, such parties are in fact living separate and apart; or
4. Separate places of residence for the complainant and the person charged.
Except as provided in subsection (b) of this section, upon conviction, said person is guilty of a Class 1 misdemeanor.
(b) A person convicted of a violation of this section is guilty of a Class G felony if the person is trespassing upon property operated as a safe house or haven for victims of domestic violence and the person is armed with a deadly weapon at the time of the offense.
Domestic Violence: The commission of one or more of the following acts upon an aggrieved party or upon a minor child residing with or in the custody of the aggrieved party by a person with whom the aggrieved party has or has had a personal relationship; but does not include acts of self-defense. A person attempting to cause bodily injury, or intentionally causing bodily injury; or placing the aggrieved party or a member of the aggrieved party’s family or household in fear of imminent serious bodily injury or continued harassment.
50-B: The chapter of the North Carolina General Statutes that provides for domestic violence relief. “50-B” is a shorthand reference to the substance of the statutes which provides expedited relief to protect spouses, children and other people in personal relationships who have experienced violence or are facing the prospect of violence.
DRO: A DRO, also known as a domestic relations order is a court order which controls the distribution of retirement or other employee benefits for non-qualified plans.
Equitable Distribution Affidavit: In all cases involving equitable distribution, each party must file and exchange an equitable distribution inventory affidavit setting forth all assets/debts, classification (whether marital, or separate property) and fair market values thereof that existed at the date of separation.
Equitable Distribution: The legal rules and procedures under North Carolina law for identifying, classifying, valuing and dividing marital property and debts.
ERISA: If you are entitled to disability, health, life insurance, pension, severance, or almost any other type of benefit because of employment or union membership, your rights to those benefits are governed by a federal statute entitled the Employee Retirement Income Security Act of 1974 – ERISA (as amended). A pension or retirement plan subject to ERISA is a “qualified plan.”
Family Law Arbitration Act: The North Carolina Family Law Arbitration Act (FLAA) permits all issues incident to a marriage or breakup of a marriage, except the divorce itself, to be submitted to binding arbitration, if a husband and wife agree to it, with special protection for custody and support. North Carolina is among at least nine States with legislation permitting agreements to arbitrate family law cases. The FLAA is unique in providing comprehensive legislative guidance for parties and integrating protections for spouses and children in one set of statutes.
Financial Affidavit: In all cases involving child support, post-separation and alimony each party must file and exchange a financial affidavit. A financial affidavit is a complete list of your income from all sources and monthly expenses, including non-prorated and prorated expenses.
Joint Custody: This term may refer to either joint legal custody or joint physical custody, or to both. There is no precise statutory definition of joint custody, so parties and the court must clarify what is intended. Joint legal custody involves a common joint decision-making arrangement whereby the parents are required to consult with each other on major issues involving the children. “Joint physical custody” is defined in the North Carolina Child Support Guidelines as a residential schedule for the children providing that each parent has the children residing with him and her for more than 122 nights (one-third) per year.
Judgment: A final written decision of the court regarding the litigated issues.
Jurisdiction: The authority vested in the court to hear an action. If the court does not have jurisdiction, the action cannot proceed. A court must have jurisdiction over both the subject matter of the complaint and over the parties themselves.
Legitimation: The statutory procedure of legalizing the status of an illegitimate child. Such is usually necessary to assure inheritance rights to child.
Litigation: A court action and the use of the court system to determine the outcome of contested issues.
Marital Misconduct: Includes any of the following acts that occur during the marriage and prior to the date of separation that may later influence a court’s decision regarding post-separation support, alimony and divorce from bed and board: physical or financial abandonment, turning the other spouse out of the marital residence, indignities, excessive drinking or drug use, reckless spending or concealment of assets, adultery, cruel or barbarous treatment, and willful failure to provide support.
Marital Property: As defined by the North Carolina Equitable Distribution statute, property acquired during the marriage through the efforts of one or both spouses between the date of marriage to the date of separation, excluding the value of property owned prior to the marriage, inheritance, and gifts received by one party from someone other than the spouse.
Mediation: The process by which parties attempt to resolve a dispute outside of the court system, through a negotiation-style settlement conference with the assistance of a trained third-party settlement facilitator. Unlike an arbitrator or a judge, the mediator has no authority to compel the parties to accept a particular outcome and if the parties fail to reach a settlement, they may proceed to trial.
Minor: A minor is any person who has not reached the age of eighteen (18) years.
Non-Abandonment Agreement: A non-abandonment agreement is a contract
between spouses which typically provides that the spouses may separate and one spouse leave the marital residence without fear of being charged by the other spouse in divorce proceedings with abandonment of his or her spouse or children.
North Carolina Family Law Arbitration Act: The North Carolina Family Law Arbitration Act enacted in 1999 authorizes the arbitration of all issues arising from a marital separation or divorce, except for the divorce itself, while preserving a right of modification based on substantial change of circumstances related to alimony, child custody, and child support.
Order: A written interim directive of the court. An order is similar to a judgment except that, unlike a judgment, an order does not finally dispose of the entire case.
Parenting Coordinator: A person appointed by the court during or at the conclusion of a child custody action where the court makes findings that the action is a high conflict case, that the appointment of the parenting coordinator is in the best interests of any minor child in the case, and that the parties are able to pay for the cost of the parenting coordinator. The authority of a parenting coordinator shall be specified in the court order appointing the parenting coordinator and shall be limited to matters that will aid the parties to: (1) identify disputed issues; (2) reduce misunderstandings; (3) clarify priorities; (4) explore possibilities for compromise; (5) develop methods of collaboration in parenting; and (6) comply with the court’s order of custody, visitation, or guardianship.
Paternity: A court action to determine whether a person is the father of a child born out of wedlock for the purpose, commonly, of enforcing support obligations.
Post-separation Support: Spousal support paid either until a specific date set forth in a court order or until an order is entered either awarding or denying alimony, whichever occurs first.
Pre-Marital Agreement: An agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage. Depending upon the terms and validity of the agreement, a valid premarital agreement may bar alimony and property distribution beyond the terms specified in the agreement or bar them entirely.
Pre-Union Agreement: A contract between partners of the same sex dealing with issues arising from the prospective cohabitation with another person.
Qualified Medical Support Orders (“QMSCOS”): A court order that requires the parent participating in a group health plan to provide coverage for his or her minor children and which may require one or both parties to pay the medical, hospital, dental, or other health care related expenses.
QDRO: An acronym for “Qualified Domestic Relations Order.” This is an order required by ERISA and the Internal Revenue Service when dividing assets in certain types of qualified retirement plans to avoid adverse tax consequences.
Retainer Agreement: A contract setting out the terms between a lawyer and client for retention of and payment for the lawyer’s services. Also known as a “legal service agreement”
Separation: A physical residential relocation of one spouse.
Separation Agreement and Property Settlement: A written contract setting out the terms to which the parties have agreed. A case may be resolved with one or more such contracts. Unless the contract specifically provides that it is to be incorporated into a court order or judgment, the contract will not be reviewed or filed with the court and is enforceable by an action for specific performance or for damages resulting from breach.
Separate Property: As defined by the North Carolina Equitable Distribution statute, property that belongs to one party and is not subject to division by the court. Generally, this is property that a party owned prior to marriage, acquired after the date of separation or acquired as a gift from a third party or inheritance at any time. Debts are classified as separate if they were incurred prior to the marriage, after the date of separation or at anytime for a non-marital purpose.
Service: The delivery to the opposing party of a pleading or some other legal document related to the lawsuit. This is a necessary process if the document is to have any legal significance.
Summons: A document notifying a party of a court action and requiring that a party respond within a certain time frame. It is issued by the clerk of court and usually is served by the sheriff or by certified mail to the individual named on the summons. It is typically served with the complaint.
Supporting Spouse: The spouse upon whom the other spouse is actually substantially dependent for financial maintenance and support or from whom such spouse is substantially in need of financial maintenance and support.
Uniform Child Custody Jurisdiction and Enforcement Act: The general purposes of this act are to (a) avoid jurisdictional competition and conflict with courts of other states in matters of child custody which have in the past resulted in the shifting of children from state to state with harmful effects on their well-being; (b) promote cooperation with the courts of other states to the end that a custody decree is rendered in that state which can best decide the case in the interest of the child; (c) assure that litigation concerning the custody of a child take place ordinarily in the state with which the child and his family have the closest connection and where significant evidence concerning his care, protection, training, and personal relationships is most readily available, and that courts of this state decline the exercise of jurisdiction when the child and his family have a closer connection with another state; (d) discourage continuing controversies over child custody in the interest of greater stability of home environment and of secure family relationships for the child; (e) deter abductions and other unilateral removals of children undertaken to obtain custody awards; (f) avoid re-litigation of custody decisions of other states in this state insofar as feasible; (g) facilitate the enforcement of custody decrees of other states; (h) promote and expand the exchange of information and other forms of mutual assistance between the courts of this state and those of other states concerned with the same child; and (i) make uniform the law of those states which enact it. (N.C. Gen. Stat. §§50A-101 to 50A-317)
Value (in equitable distribution): The estimated or appraised worth of any object or property. Real and personal property must be valued as of the date of separation and sometimes, the date of final distribution of property. The standard of value is “fair market value” defined as the amount at which property would change hands between a willing buyer and a willing seller, neither being under any compulsion to buy or sell and both having reasonable knowledge of the relevant facts
Venue: The appropriate judicial district within the state of North Carolina for the lawsuit to be filed.