DISCLAIMER: the following information is offered for educational purposes only and is not to be construed as legal advice. Call an attorney for a consultation before taking any action with your case.
The majority of people who file for divorce in North Carolina do so after being separated from their spouse for one (1) year. During this period of separation, you must live separate and apart from your spouse and cease your sexual relationship. Either spouse may file after this period of separation is satisfied, so long as he/she meets the requisite residency requirements.
NOTE: If you are a party to a divorce proceeding and do not include a claim for alimony or property division, you will be barred from claiming these after your divorce is complete.
Alimony is generally decided by a judge in court or agreed to in a separation agreement, which is discussed below. In deciding whether to award alimony, a judge will determine whether there is a dependent and supporting spouse. You are generally considered a supporting spouse if you make more money than your spouse and likewise, if you make less money, you are generally considered a dependent spouse. The judge has broad discretion in deciding whether to award a party alimony and how much. The alimony statute N.C.G.S. 50-16.3A provides many factors that the judge may consider:
(1) Marital misconduct of either spouse;
(2) The relative earnings and earning capacities of the spouses;
(3) The ages and the physical, mental, and emotional conditions of the spouses;
(4) The amount and sources of earned and unearned income of both spouses;
(5) The duration of the marriage;
(6) The contribution by one spouse to the education, training, or increased earning power of the other spouse;
(7) 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;
(8) The standard of living of the spouses established during the marriage;
(9) 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 economic needs;
(10)The relative assets and liabilities of the spouses and the relative debt service requirements of the spouses, including legal obligations of support;
(11)The property brought to the marriage by either spouse;
(12)The contribution of a spouse as homemaker;
(13)The relative needs of the spouses;
(14)The federal, State, and local tax ramifications of the alimony award;
(15)Any other factor relating to the economic circumstances of the parties that the court finds to be just and proper.
(16)The fact that income received by either party 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.
Speaking very generally, the judge will use the following process to divide your property. The judge first identifies and classifies your property. Identifying property is determining whether you or your spouse has a proprietary right to a piece of property. Classifying the property determines whether it is divisible or not. In determining whether it is divisible or note, the court will classify property as either marital or separate. Marital property is property that is acquired during the course of the marriage up to the date of separation. Separate property is property that is acquired before the marriage or during the marriage, by means of bequest, devise, descent or gift. The judge then determines what the value of the property is and divides it equally, unless there is a determination that an unequal divide of property would be proper. Out of all the claims discussed here, property division is by far the most complicated and often bitterly fought over.
A separation agreement is an contract between you and your spouse that can resolve issues such as alimony, property division, child custody and child support. Resolving your issues through a separation agreement may help to avoid the stress and expense involved in litigation.
There are two parts to child custody: physical custody and legal custody. Physical custody is the right to spend time and have contact with your child, whereas legal custody involves the right to decide in how your child is raised, such as decisions relating to medical care or your child's education.
Physical custody is also viewed in terms of how much you get or how many overnights you have with your child. Primary custody is viewed as vesting a majority of contact or decision making power with one parent, whereas joint custody is viewed as sharing these rights more equally.
In North Carolina, the biological parents of a child are presumed to have equal rights to the custody of their children, absent a showing of unfitness for parenting. A parent can be deemed "unfit" if it is proven that he/she has alcohol or substance abuse issues, mental health issues, been convicted of a crime, or physically/sexually abused their spouse or child, among other things.
Upon initiating a claim for child custody, you and your spouse will most likely undergo mandatory mediation through the court system. During mediation, you and your spouse will complete an orientation with the child custody process and meet with a neutral third party and try to work out an agreement on your own.
A consent order is a voluntary agreement you can enter into with your spouse that spells out the terms of your child custody arrangement. Often, they are negotiated through your attorneys outside of court. A large benefit to working out an arrangement through a consent order is that you and your spouse can tailor the order to your specific needs in great detail, whereas if left up to a judge, there is no guarantee that your specific individual needs will be accounted for in the order.
If you and your spouse resolve your case at mediation or through a consent order, you will not need to have a hearing.
If you and your spouse cannot agree on a custody arrangement, you will most likely have to have a hearing in front of a judge. There are several factors that can effect what type of custody arrangement you could be awarded. The standard that North Carolina uses in awarding child custody to a parent is the "Best Interests of the Child. " This is a very broad standard and includes a wide arrange of evidence that the judge will consider in making his/her decision.
At the hearing, both you and your spouse will be given an equal amount of time to present evidence, make arguments before the judge and to cross examine testifying witnesses. The judge is given wide discretion in determining what evidence is allowed to come in and what type of custody arrangement is proper.
Modification of Custody Order
Once a child custody order is put into effect, your ability to change it is limited. Courts are reluctant to change a custody order unless you can show that there has been a substantial change in circumstances and that what you're asking for is in the best interest of the child.
Child support is determined by the North Carolina Child Support Guidelines. Several factors that determine your obligation for child support include: the relative income of you and your spouse, your custody arrangement for your child (specifically, the number of overnights you spend with your child), childcare expenses, among several other factors.
There are several types of adoptions, each with its own rules, forms and procedures. Call now for an evaluation of your case.