What About Custody, Child Support, Post-Separation Support, Alimony, and Property Division?
These issues are complicated and a full discussion is beyond the scope of this website. We do provide some basic information. You may resolve these issues by agreement with your spouse, in which case you would execute a Separation Agreement and Property Settlement. In order to be valid and binding, a Separation Agreement needs to follow certain formalities. You should consult an attorney for assistance in negotiating and drafting the Agreement.
If you and your spouse are not able to agree, you can try mediation or arbitration as alternatives to court. If those options do not work for you, you will have to file a Complaint (lawsuit) seeking relief in court. Regardless of which approach you choose, you should consult an attorney first to know all of your rights on these complicated issues.
Do you have questions on what will happen with your children if your marriage ends? Do you want to know where the children will stay and how visitation will take place? »
Post-separation support and alimony are of similar nature. Post-separation support is temporary support that is used by our judges to get you to the equitable distribution of the case where the property and other marital assets and debts will be distributed. Both post-separation support and alimony are primarily based upon the needs of what is called the dependant spouse.
Each household usually has a supporting spouse and a dependant spouse, and this is based on the income of the parties. If you are the dependant spouse, and you have insufficient means to live, then it is likely the judge would award you post-separation support from the supporting spouse. This is based on a variety of factors that can be discussed with you depending on your particular situation. There is a standard affidavit of financial standing form that you will need to fill out in order to attempt to seek post-separation support. 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.
- Each party’s respective legal obligations to support any other persons.
Generally, a dependant spouse is entitled to an award of post-separation support if, based on the consideration of these factors, the 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.
However, this may be impacted by the fact that at a hearing on post-separation support, the judge shall consider marital misconduct by the dependant 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 dependant 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.
Do you want to know your rights on support from a former spouse or if you will owe support as a result of the ending of a marriage? »
Alimony is also based on the needs of the dependant spouse and the ability to pay of the supporting spouse, but is usually addressed after equitable distribution. In order to pursue alimony, the needs of the dependant spouse in light of the equitable distribution order would be considered. It is important to note that in North Carolina if a dependant spouse has any form of illicit sexual conduct performed during the marriage that is not condoned by the other party, they are completely barred from getting alimony. Some other factors that the Court considers are:
- The relative earnings and earning capacities 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 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 of 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 economic 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 to the marriage by either spouse.
- The contribution of a spouse as homemaker.
- The relative needs of the spouses.
- The federal, State, and local tax ramifications of the alimony award.
- Any other factor relating to the economic circumstances of the parties that the court finds to be just and proper.
- 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.
Are you going through a separation? Knowing what will happen with your property is very important. Do you want to know how issues of property distribution are handled?
Do I Need an Agreement or Court Order To Be Legally Separated?
No. You are legally separated once you begin living separate and apart and at least one spouse intends to remain that way.
What Is the Effect of a Divorce?
There are many important effects of a divorce. First, the entry of a divorce cuts off your right to alimony and property division. If those claims have not been resolved in a valid and binding Agreement or properly filed with the court prior to the entry of the divorce judgment, they are lost forever. The loss of those claims can be devastating. If you have a claim for alimony or if you or your spouse acquired property during the marriage (house, cars, bank accounts, retirement, etc.), you need to consult an attorney to protect those claims. Second, the entry of a divorce changes your tax filing status. Third, the entry of a divorce enables you to remarry. Fourth, the entry of a divorce cuts off your rights to inherit from your spouse. Fifth, it can alter the way your house is owned if you own a house with your spouse.
Do you want to change your name or that of a child? »
How Long Does the Divorce Process Take?
The length of the process varies based on how long it takes to get service of your spouse and how soon the clerk schedules the divorce hearing. Generally, it should take approximately 60 days after the Complaint is filed.
Does it Matter Who Files for the Divorce?
No. The person who files for the divorce is responsible for filing the appropriate papers, paying the filing fee and getting the hearing scheduled. However, there is no advantage to filing first.
What Do I Need to Do to Get Divorced?
You have to file a Complaint (lawsuit) asking for a divorce. You cannot file a divorce complaint until after you and your spouse have been separated for one year. You have to serve your spouse with the Complaint. Service is usually accomplished by certified mail or personal delivery by a Sheriff. Then you will need a hearing in front of a judge. The judge has to enter a Judgment set declaring you divorced. You are not divorced until the judge signs a Judgment and the clerk file stamps it. A wife can seek to regain her maiden name in a divorce proceeding.
What Are the Grounds for Divorce?
There are only two grounds for divorce in North Carolina:
- Separation for one year
- Incurable insanity if one spouse and separation for three years
The vast majority of marriages are dissolved based on the ground of separation for one year. In order to get divorced, you must have been separated for one year and at least one spouse must have had the intent to remain separate and apart. In addition, one of you must have been a resident of North Carolina for at least six months. Fault is not necessary to obtain a divorce.
Do you need to deal with issues surrounding your upcoming marriage or do you want certainty of how your property will be handled in the event of a separation? »
Parties about to marry may enter into a written contract before marriage with respect to a variety of matters so long as the contract meets the requirements of North Carolina law. Such a contract then becomes effective upon marriage of the parties.
A premarital agreement cannot eliminate a child support obligation. If you are contemplating marriage and you have children or obligations from a prior marriage, have an expectation of significant gifts or inheritances from third parties, own property or wish to provide for disposition of assets and liabilities or wish to limit exposure to future spousal support obligations, it is wise to consult an attorney with an expertise in marital law before you marry.
Keep in mind that these agreements can be complex in some circumstances, so they are best examined and drafted well in advance of the date of the marriage.
What Is Mediation?
Mediation is when a neutral third party helps facilitate an agreement between the parties. The mediator does not make decisions. The parties make the decisions, but the mediator helps them along. You can do private mediation before or after a Complaint has been filed.
You can address custody, child support, alimony, and property issues in mediation. Mediation is generally less expensive and not as time-consuming as court. The parties control the outcome. The entire process can be settled in one day, and you can leave a private mediation with a binding settlement document.
The process is very civil and dignified. It can set the tone for how the parties deal with each other from that point forward. If the parties are able to resolve the issues incident to their separation at mediation, typically they work together and treat each other better in subsequent dealings with children or otherwise. You do not necessarily need a lawyer to act as a mediator, but it is recommended. A non-lawyer mediator will not know the law.
Who Is Entitled To Custody?
In order for a court to grant custody, the court must find that the custodian is a fit and proper person to have custody and that custody with that person is in the best interests of the children. There is not a presumption favoring mothers over fathers. All other things being equal, mothers and fathers have equal rights to the custody of their children. There is a presumption favoring natural parents over third parties, such as grandparents, aunts, and neighbors. Natural parents have protected rights to parent their own children. However, natural parents can lose those protected rights if they take action that is inconsistent with the best interests of the children.