- What do I have to do to get divorced in North Carolina?
- What are the effects of the entry of an Absolute Divorce Judgment?
- When may a woman resume her maiden surname or a prior husband’s surname?
- When may a man resume the use of a premarriage surname?
- How are child custody and visitation matters decided in NC?
- How does a Judge determine who gets custody and visitation?
- How old does my child have to be before he/she gets to decide with whom he/she will live?
- What is meant by the term “sole legal custody”?
- What is “joint legal custody”?
- If I have sole legal custody, does that mean that my child/children will live with me the majority of the time?
- If my spouse and I have joint legal custody of our children, does that mean that the child/children will live with each of us one-half of the time?
- What is the best residential or physical custody arrangement for my child/children?
- I have a permanent custody order, does that mean that the custody of my child/children can never be changed?
- Who decides how much child support I will have to pay?
- If my children live with me one-half of the time, will I have to pay the other parent child support?
- When will I be able to stop making child support payments to the other parent?
- Can I make the other parent pay for college for our child/children?
- What is spousal support?
- How much PSS will I have to pay?
- What constitutes marital misconduct with respect to PSS and Alimony cases?
- How much Alimony will I have to pay?
- My spouse and I have separated, when does property get divided?
- What is “marital property”?
- What is ‘divisible property”?
- What is “separate property”?
- What happens in an Equitable Distribution trial?
- Will I get a 50-50 division of the marital property and the divisible property?
- What factors can a Judge consider if asked to make an unequal division of the net values of a couple’s marital property and divisible property?
- My spouse committed adultery, does that mean that I am entitled to more that 50 % of marital property and divisible property?
- If my spouse or former spouse goes bankrupt, am I responsible for joint debts?
- My spouse and I are separated, can I remove him/her from my employer-sponsored medical insurance?
- What is litigation?
- What is arbitration?
- What is mediation?
As compared to the determination of such issues as child custody, child support, spousal support and the division of marital assets and debts, the process for obtaining a divorce is very simple for most people.
First, you and your spouse must have lived separate and apart from each other in different residences for more than one year (366 days will do); and second, either you or your spouse must have lived in North Carolina for 6 months proper to the date the divorce lawsuit is commenced.
Provided that you meet the 2 criteria listed above, you or your lawyer may file your verified Complaint for Divorce and a document called a Summons with the clerk of court in the county where you reside. After filing your Complaint and Summons the documents must be served on your spouse. Service is generally accomplished either by the Sheriff serving your spouse at his/her residence or by mailing the file-stamped Summons and Complaint to your spouse by certified mail, return receipt requested. Once served, your spouse is given a specified amount of time within which to respond to the Complaint. After that time period expires, and provided that your spouse has no valid objection to the entry of the Absolute Divorce Judgment, then you and/or your attorney will make arrangements to appear in Court and obtain your Absolute Divorce Judgment from the Judge. Once your Divorce Judgment is entered, then either you or your attorney will mail a copy of the Absolute Divorce Judgment to your now ex-spouse. As with any other civil Judgment, your former spouse has a specified period of time within which to appeal the entry of your Absolute Divorce Judgment. Generally, the appeal period will be 33 days from the date you obtained entry of your Absolute Divorce Judgment from the Court. Once the appeal period has run, you will be free to remarry.
An Absolute Divorce severs the bonds of matrimony previously existing between spouses. After the entry of an Absolute Divorce either party to the Absolute Divorce may marry again.
An Absolute Divorce obtained within North Carolina destroys the right of a spouse to equitable distribution under N.C. Gen. Stat. § 50-20 unless the right was asserted by the party prior to the entry of the Absolute Divorce Judgment.
An Absolute Divorce obtained within North Carolina destroys the right of a spouse to seek alimony under N.C. Gen. Stat. § 50-16.3A unless the right was asserted by the party prior to the entry of the Absolute Divorce Judgment. However, if a spouse has been awarded spousal support by the Court under any other judgment or order that was rendered before or at the time of the entry of the Absolute Divorce Judgment, then the Absolute Divorce Judgment will have no effect on the subject judgment or order.
Many women request to resume the use of their maiden names in either the Complaint for Absolute Divorce or in the responsive pleading which is called an Answer and Counterclaim. It is also possible for a woman to resume the name of a prior deceased husband or of a prior living husband if she has children who have that husband’s surname. If so, the Absolute Divorce Judgment will contain a provision permitting the woman to resume the use of her maiden name or that of a prior husband as may be appropriate.
However, if a woman does not seek to resume the use of her maiden name, or that of a prior husband as may be appropriate, at the time of the entry of the Absolute Divorce Judgment, she may later request permission from the clerk of court of the county in which she resides or in which the Absolute Divorce Judgment was entered. This is unusually accomplished by completing a simple form that can be obtained from the clerk of court and paying a minimal administrative fee.
Although not as typical, some men change their surnames when they get married. If so, at the time of divorce, a man may request the use of his premarriage surname in the Divorce Complaint, in the Answer and Counterclaim he files in response to the Complaint. If so, the Absolute Divorce Judgment will contain a provision permitting the man to resume the use of his premarriage surname.
If the man does not seek to resume the use of his premarriage surname as a part of the Absolute Divorce proceeding, later on, he may make a written request to the clerk of court of the county in which he resides or in which the Absolute Divorce Judgment was entered and seek permission to resume the use of his premarriage surname.
The vast majority of separating and divorcing parents make the decisions about the parenting of their children without having to go through a custody trial.
Many parents, working with their lawyers and/or with a private mediator, negotiate with each other and develop a parenting agreement that will provide for the continuing care of their children. The parents focus on the future and how their children will spend time with each parent, how major decisions will be made regarding the children, and any special co-parenting issues that may cause problems for the parents
When parents file child custody lawsuits in Durham County and Orange County, before a Judge will hear their case, the parents must first participate in the Court’s mandatory Child Custody and Visitation Mediation program. The Court’s Child Custody and Visitation Mediators are professionals with at least a master’s degree and extensive training in the field of Family Mediation. The program is provided free of charge to all persons with pending child custody matters. While everyone must participate, there is no requirement that the parents must reach an agreement. The majority of parents who participate in the Court’s custody and visitation mediation program settle their custody and visitation issues at the mediation. Those parents who are not able to agree on a Parenting Plan during mediation will be referred back to the District Court and a custody trial will be scheduled.
In custody trial, the Judge makes his or her decision based upon the evidence presented of what arrangements are in the best interest of the child or children whose lives will be affected.
The types of evidence that help the Judge to make this determination include the following:
The degree to which each parent supports or undermines the other parent’s relationship with the child/children;
Which parent, if either, was the primary caretaker of the child/children before the parents separated;
The quality of the relationship of each parent with the child/children;
The time demands that each parent’s employment places on him/her and how those demands, if any, affect each parent’s ability to be available for the child/children;
The nature, quality and reliability of current work-related child care arrangements;
How each parent attends to any special needs, interests and/or aptitudes of the child or children;
The physical health of each parent;
The mental health of each parent;
Child’s health, including any recent changes; and
Whether there have been any instances of domestic violence in the home.
In North Carolina, there is no magical age after which a minor child gets to choose the parent with whom he/she wants to live. If the Judge is provided with proper evidence of the wishes or preferences of a child whom the Court decides is of suitable age and discretion, the Judge may properly consider the child’s preferences, but the Judge’s decision will not be controlled by the child’s preferences. As long as the child is a minor (under the age of 18 years), the Court is going to make its custody decisions based upon what the Judge finds to be the in the best interest of the child.
As a general rule, parents should confer with each other about all important decisions that will affect their child/children. However, when the parents are unable to agree, the parent who has “sole legal custody” will be the parent who has the authority to make the final decision.
Parents who have “joint legal custody” are required to make jointly agreeable decisions concerning their child/children. Neither parent gets the final say. Further, you will be expected to discuss non-emergency matters in advance taking action. It is not good enough to wait to inform the other parent about a decision after the fact.
Typically, if one parent is awarded sole legal custody, he/she will also be awarded primary residential or physical custody of his/her child/children.
Not necessarily. As mentioned above, “joint legal custody” refers to decision making authority, not the residential arrangements and other parenting arrangements that you and your spouse will observe with your child/children.
The residential arrangements for children whose parents have been awarded or who have agreed to observe joint legal custody can be anywhere from schedules where the child/children spend alternate weeks with each parent, to living full time in one parent’s home and visiting only on occasion with the non-resident parent.
There is no one best arrangement. It all depends on the factors I listed for you in the answer to FAQ # 6.
In North Carolina, the Court will retain the ability to modify its child custody and visitation orders during the minority of the child/children as long as the child/children reside in this State. However, before the Court will make any change to an existing order, it must be shown that there has been a substantial change of circumstances that affects the welfare of the child/children.
North Carolina has adopted child support guidelines. The guidelines establish the presumptive amount of child support that parents are expected to pay for their child/children as long as the parents’ combined average gross monthly income is at or below $25,000.00. The guidelines are designed to ensure consistency and predictability in the setting of child support orders.
The child support guidelines are calculated using what is called an “income shares” model. The income shares model is based upon the notion that child support is a shared parental obligation and that a child should receive the same proportion of parental income he or she would receive if the parents lived together.
In cases where the amount of child support calculated under the child support guidelines would be insufficient or would be too much, the trial Court, upon its own motion or upon the request of a party, may deviate from the guideline amount and instead to set child support based upon the actual reasonable needs and expenses of the child/children and the relative ability of each parent to provide support for the child/children.
The child support guidelines are not applicable to cases where the parents’ combine income is more that $25,000.00 per month. In those cases the trial judge is required to consider the actual reasonable needs and expenses of the child/children and the relative ability of each parent to provide support for the child/children.
Maybe. If your average gross monthly income exceeds that of the other parent, then you may be ordered to provide some amount of child support to the other parent even though your child/children live in your household 50% of the time.
In North Carolina, a parent’s legal obligation to support his or her child/children ends when the child turns 18 years of age or sooner if the child becomes an emancipated minor. However, if a child is still enrolled in primary or secondary school when she turns 18, a parent’s child support obligation will continue until the child graduates, otherwise ceases to attend school on a regular basis, fails to make satisfactory progress toward graduation, or reaches age 20, whichever comes first.
In North Carolina there is no legal requirement for parents to pay for college for their children. Therefore, in a child support proceeding a Judge cannot enter and Order that directs either of the parents to pay for college for their child/children.
However, many parents include provisions in their Parenting Agreements or in their Separation Agreement and Property Settlement which require one or both of the parents to pay for some portion of or all of the costs of college for their child/children. In such instances, if one parent later fails or refuses to uphold his/her obligations under the Agreement, the other parent has the option of suing the non-paying parent to enforce the terms of the Agreement.
“Spousal Support” refers to support paid by one spouse or former spouse to the other. Sometimes spousal support is called spousal maintenance. The purpose of spousal support is to meet the support needs of a party who is unable to provide fully for his or her own support.
In North Carolina we have two types of spousal support: “post-separation support” (“PSS”) and “alimony”. The distinction between the two is that PSS is intended only to be temporary and payment of PSS ceases either on the date specified in the PSS order or once the trial court enters an order either granting or denying alimony. Alimony can last for a term of years or until the death, remarriage or cohabitation of the recipient.
To be entitled to receive either PSS or Alimony, the spouse seeking the award must meet the statutory definition of a “dependent spouse”. In North Carolina, a dependent spouse is one who is actually substantially dependent upon the other spouse for his or her maintenance and support or who is substantially in need of maintenance and support from the other spouse.
In order for the other spouse to be ordered to pay PSS or Alimony, he/she must meet the statutory definition of a “supporting spouse”. In North Carolina, a supporting spouse is one upon whom the dependent spouse is actually substantially dependent for maintenance and support or from whom such spouse is substantially in need of maintenance and support.
There are no set guidelines for calculating the amount of PSS a court will order. Each case is decided based upon the facts and circumstances of the individual couple. The trial Judge will base his or her decision on the financial needs and abilities of the parties. Here are the types of information the court will need to see: evidence of the parties’ accustomed standard of living, the present employment income and other recurring earnings of each party from any source, the separate and marital debt service obligations of the parties, those expenses reasonably necessary to support each of the parties and each party’s respective legal obligations to support any other people.
A dependent spouse will be entitled to receive an award of PSS if, after taking the evidence, the trial court finds that the resources of the dependant spouse are not adequate to meet his or her reasonable needs and the supporting spouse has the ability to pay the amount of the PSS award. Generally the amount of the PSS award will be the measured by the shortfall between the dependent spouse’s net monthly income and his/her reasonable monthly needs and expenses.
Typically, the issue marital misconduct will not be considered at the PSS hearing. However, if the supporting spouse introduces evidence of marital misconduct by the dependent spouse, the judge will consider evidence of marital misconduct by the dependent spouse occurring prior to or on the date of separation in deciding whether to award PSS and in deciding the amount of the PSS. Whenever the Judge considers marital misconduct by the dependent spouse, the judge shall also consider evidence of any marital misconduct by the supporting spouse occurring prior to or on the date of separation in deciding whether to award PSS and in deciding the amount of the PSS.
First, for an act to come within the statutory definition of “martial misconduct” the act must be committed by a spouse during the parties’ marriage and prior to or on the date of separation. N.C. Gen. Stat. § 50-16.1A(3) lists nine (9) categories of acts that constitute marital misconduct. The nine (9) categories are as follows: (a) illicit sexual behavior which the spouse voluntarily engaged in with someone other than his or her marriage partner; (b) involuntary separation of the spouses in consequence of a criminal act committed prior to the proceeding in which alimony is sought; (c) abandonment of the other spouse; (d) malicious turning out of doors of the other spouse; (e) cruel and barbarous treatment endangering the life of the other spouse; (f) indignities rendering the condition of the other spouse intolerable and life burdensome; (g) reckless spending of the income of either party, or the destruction, waste, diversion, or concealment of assets; (f) excessive alcohol or drug use that renders the condition of the other spouse intolerable and life burdensome; (h) willful failure to provide necessary subsistence to the other spouse so as to render the condition of the other spouse intolerable and life burdensome.
There are no set guidelines for calculating the amount of Alimony a court will order. In North Carolina the determination of the amount of an Alimony award is left to the sound discretion of the trial judge. In making this determination, the NC Alimony statute directs the trial judge to consider “all relevant” factors. Such relevant factors include:
The marital misconduct of either of the spouses;
The relative earnings and earning capacity of the spouses;
The ages and the physical, mental, and emotional conditions of the spouses;
The amount and sources of earned and unearned income of both of the spouses, including, but not limited to, earnings, dividends and benefits such as medical, retirement, insurance, social security, or others;
The duration of the marriage;
The contribution by one spouse to the education, training, or increased earning power of the other spouse;
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;
The standard of living the spouses established during the marriage;
The 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 needs;
The relative assets and liabilities of the spouses and the relative debt service requirements of the spouses, including legal obligations of support;
The property brought into the marriage by either spouse;
The contribution of a spouse as a homemaker;
The relative needs of the spouses;
The federal, State and local tax ramifications of the alimony award;
The fact that income received by either spouse was previously considered by the court in determining the value of a marital or divisible asset in an equitable distribution of the parties’ marital or divisible property;
Any other factor relating to the economic circumstances of the parties that the court finds to be just and proper.
In North Carolina, property division incident to separation is governed by the State’s Equitable Distribution Act which is codified at N.C. Gen. Stat. § 50-20 et. seq. The rights of married persons to an equitable distribution of marital property and divisible property vest at the time of the parties’ separation from one another. What this means is that since you and your spouse are now separated, either of you can file a lawsuit seeking equitable distribution of your marital property and your divisible property. Alternatively, you and your spouse, can negotiate a property division and have your attorneys prepare a Separation agreement and property Settlement Agreement in which the terms of your property division will be set out.
Marital property is that property acquired through the efforts of one or both spouses between the date of marriage and the date of separation. To be subject to equitable distribution, the marital property must be owned on the date of separation. Gifts and inheritances received by a spouse from a third party between the date of marriage and the date of separation are not marital property. All vested and non-vested pension and retirement benefits acquired between the date of marriage and the date of separation are marital property. Marital Property is subject to equitable distribution.
According to the North Carolina Equitable Distribution statute, divisible property refers to certain post-separation changes in marital property occurring after the date of separation and prior to the date of distribution. Divisible property includes passive increases in the value of marital property, such as interest and dividends. It also includes any property received after the date of separation to which a party had a right before the date of separation due to efforts by one or both of the spouses during the marriage (e.g., bonuses, commissions. Increases in marital debts related to financing charges and interest accrued since the date of separation are also divisible property. Divisible Property is subject to equitable distribution.
Separate property includes property owned by a party before the date of marriage, property acquired by a party during marriage through a gift or inheritance from a third party (not the other spouse), and property acquired by a party after the date of separation using post-separation earnings. Separate property also includes income from separate property and property acquired in exchange for separate property. Debts are classified as separate if they were incurred before the date of marriage, after the date of separation or at any time for a non-marital purpose. Separate Property is not subject to equitable distribution.
In an Equitable Distribution trial, the judge will take must first identify all of the property and debts that the couple owned or owed on their date of separation. Once the assets and debts are identified, the next step is to classify the assets or debts as either marital or separate. After classifying the property, the judge will then value the marital assets and debts as of the date of separation and the date of the trial. Where there has been a change in the value of a marital assets or debt between the date of separation and the date of trial, the court also has to decide whether those changes constitute divisible property, and if so, will be a part of the divisible marital estate. The last step in the process is for the judge to make the actual division of the marital and divisible property between the parties.
The North Carolina statute says that there “shall be an equal division by using net value of marital property and net value of divisible property unless the court determines that an equal division is not equitable. If the court determines that an equal division is not equitable, the court shall divide the marital property and the divisible property equitably.” Generally, the court will divide the parties’ net martial property and net divisible property 50-50 unless one or both of the parties asked the court to make an unequal division of the property.
The Equitable Distribution Statute (N.C. Gen. Stat. § 50-20 (c) lists 13 specific “distributional factors” and “catchall” factor (“any other factor which the court finds to be just and proper”) that a trial judge may consider when he/she is asked by one or both parties to make an unequal division of martial property and divisible property. It is the responsibility of the party or his/her attorney, to present evidence to the court which supports each distributional factor the party believes is pertinent to his/her situation. Once the evidence is all in, then the weight to be afforded the evidence is left to the sound discretion of the trial judge as is the decision of what specific division of marital property and divisible property is equitable.
Marital infidelity, standing alone, will not support an unequal division of marital property and divisible property. However, if the spouse committing marital infidelity also used marital funds in the commission of his/her acts of infidelity, that waste of marital assets is a distributional factor that a trial judge may consider.
Yes, unless you also discharge the debts in bankruptcy.
Whether you will be permitted to remove your spouse from your employer-sponsored health insurance policy is a question that will depend on the insurance policy itself. However, in North Carolina we honor the common law “Doctrine of Necessaries”. As the doctrine of necessaries is applied between spouses, a spouse is personally liable for the necessary expenses incurred by the other spouse.
To prevail under the theory of the “Doctrine of Necessaries”: the provider of the necessary services or goods must show: that (1) services or goods were provided to the spouse; (2) the services or goods were necessary for the health and well-being of the receiving spouse; (3) the person against whom the action is brought was married to the person to whom the necessary services or goods were provided at the time such services were provided; and (4) the payment for the necessaries has not been made.
There is an exception to the doctrine of necessities for separated spouses. However, mere separation is not enough. In order for a spouse to take advantage of the separation exception, he/she must show that the provider of the necessary services or goods, e.g. the hospital, had actual notice of the parties’ separation at the time the services were rendered or the goods supplied.
Litigation is a court action and the use of the court to determine the outcome of disputed issues.
Arbitration is the process by which parties agree to resolve their legal 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 in dispute. Arbitration is governed exclusively by a written arbitration agreement developed by the parties. Usually, in their arbitration agreement, the parties elect to be bound by the arbitrator’s decision.
Mediation is the process by which parties attempt to resolve a dispute outside of the court system through a negotiation-styled settlement conference with the assistance of a third-party settlement facilitator. Unlike an arbitrator or a judge, the mediator has no authority and if the parties fail settlement, the parties may proceed to trial. Mediation may be conducted with or without the parties having their respective lawyers attend.