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Frequently Asked Questions About Family Law

Legal Separation Agreements
Getting a Divorce in North Carolina
Anullment in North Carolina
Pre-Nuptial & Post-Nuptial Agreements

Child Custody & Visitation
Child Support
Property Settlements
Alimony

Legal separation agreements

Does Rice Law handle Separation Agreements?

Yes.

What is a Separation Agreement?

A Separation Agreement (separation contract) is a written proclamation that legally confirms husband and wife are living apart and both or just one [of them] intends to remain that way.

Separation Agreements are written legal contracts, signed by both husband and wife, and are notarized. While North Carolina doesn't require a written agreement to be consider a husband and wife as legally separated, a Separation Agreement and Property Settlement (SAPS) can be used to detail child support and custody, distribute property, and alimony (typically financial assistance given to the wife), and the SAPS may act as a precursor to an eventual divorce. Consult an attorney to determine if you need a Separation Contract or a Separation Agreement and Property Settlement (SAPS). You may also read more about legal separation.

Can I move out without a Separation Agreement?

Yes; however, there may be legal consequences. Consult an attorney regarding your unique situation.

Do I need a written Separation Agreement to be legally separated?

No. In North Carolina you're legally separated when you first begin to live separate and apart from your spouse without cohabitation as long as one of the spouses have the intent to live separate and apart and not in the relationship of husband and wife.

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Getting a divorce in North Carolina

Does Rice Law handle divorce cases?

Yes. Rice Law attorneys are well-versed in North Carolina family law relating to divorce.

On what grounds can I file for divorce?

North Carolina divorce laws provide two grounds for divorce:

  • Husband and wife living both separate and apart without cohabitation for one year.
  • Incurable insanity or mental illness of one of the spouses, based on a period of confinement or examination.

What does living "separate and apart" mean?

Under previous law, "separate and apart" meant the absolute cessation of sharing a residence and sexual relations. Under the current laws, isolated sexual contact may not stop the one-year period. However, it isn't black-and-white in this area—there is no specified amount of contact indicated in the law that would cause the one-year separation to start over. Consult an attorney for specific advice on your situation.

How do I get a divorce?

You or your spouse must file a Complaint with the court asking for a divorce. The Complaint is the starting point of the divorce process. You must be separated for at least a year before you file on the grounds of one year's separation.

What if my spouse doesn't want a divorce?

You can get a divorce even if your spouse doesn't want to if you have been separated for one continuous year and the paperwork has been processed.

Does where I live impact where I file for divorce?

To file for divorce in North Carolina, one of the spouses must have resided in the state for at least six months. The action is normally filed in the county where you live, but may be filed in the county where your spouse resides. There are other rules for filing court location if you or your spouse relocate outside the state; if such applies to you, ask your attorney for details.

How long does it take to become legally divorced?

In general, it takes six weeks. However, the process could be longer; it includes response periods and scheduling (court activity levels).

Can you explain the divorce process — the court, parties, and title of actions?

A legal request to legally end the marriage [Complaint for Divorce] is filed in District Court. The Plaintiff [spouse filing for divorce] typically works with a lawyer to file this action [Complaint]. The Complaint must be verified under oath before a notary public.

Note: Because the Complaint must be verified, obtaining a Separation Agreement can be one way to clearly document when you and your spouse first chose to live apart.

The Complaint is then forwarded to the Defendant [person with action/complaint against them] via a Summons. The Summons and Complaint are generally served by Sheriff but can be served via a variety of methods, including publication in the event you have diligently attempted to locate your spouse and are unable to do so.

Upon receipt of summons [being served] the Defendant is given a specific number of days (generally 30 days) to answer or respond to the Complaint [lawsuit].

Note: In divorce filings it is common for the Defendant to file no answer.

In court, documented/verified evidence is presented and/or in-court testimony is heard from the spouse requesting the divorce [Plaintiff].

A Judgment of Divorce is based on the grounds for divorce.

The judgment is presented. When approved the judgment from the divorce hearings results in receiving a divorce [legal document: Judgment of Absolute Divorce].

When getting divorced, do I need to appear in court and testify before a judge?

If your divorce is uncontested and Summary Judgment is used, you don't have to appear in court for the divorce hearing. Your Rice Law attorney will appear on your behalf to get your Decree of Divorce. However, we generally require our clients to appear and testify, because we believe the act of obtaining the divorce is important.

If your divorce is contested or Summary Judgment is not used, the court may call your case for trial. In such a case, the Plaintiff and their attorney appear in court. Often the date of separation is the issue that the Defendant wishes to contest and they may appear and offer evidence in an attempt to disprove the Plaintiff's allegations regarding the date of separation.

What is a Summary Judgment?

Summary Judgment is a simplified divorce procedure that is based on both spouses:

  • Living separate and apart without cohabitation for one year
  • Agreeing to all terms of the divorce, with no issues to be decided by the court

...and the court's finding that all facts from non-testimonial evidence are presented by affidavit, verified motion, or other verified pleading.

When can I remarry?

You can only remarry after the Decree of Divorce has been granted by the court. You should generally wait at least thirty days following the entry of your Divorce Judgment before you remarry since the opposing party could appeal the final judgment.

Can I speed up my divorce by back-dating my date of separation?

Falsifying information on a pleading filed by the court is considered the crime of perjury. Our Firm certainly will not represent anyone who is dishonest with the Court and you could face criminal penalties including jail time for such falsehood. You are also subject to civil sanctions and penalties under RUle 11 of the North Carolina Rules of Civil Procedure. This is a very serious offense! Do not try to speed up your divorce by lying!

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Annulment in North Carolina

Can I get an annulment?

An annulment is a court decree that says there was never a marriage, while divorce is a court declaration that says the marriage contract was broken. Hence, annulments are more difficult to prove. Examples of grounds for an annulment include:

  • The spouses are nearer of kin than first cousins
  • Either spouse is under age 16
  • The marriage was entered under the belief that the woman was pregnant
  • Either spouse is physically impotent
  • Either spouse is incompetent
  • The marriage is bigamous

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Alimony

What is alimony?

Alimony is maintenance or spousal support, which is legally based on the reasoning that both spouses have an absolute obligation to support each other during the marriage. Either husband or wife may request post-separation support (PSS) and/or post-marital alimony, and the court may order either to pay alimony.

The amount of alimony to be paid/received and its terms vary and are based on the couple's circumstances. The amount of alimony paid before and after divorce can also differ.

How is alimony determined?

Alimony can be determined and agreed upon by the spouses when working on the terms of the divorce. The details relating to alimony (e.g., who pays, how much, for how long) can be included in the written agreement prepared by your attorney. However, if an agreement cannot be reached by the parties, the court can make a fair determination based on legal argument and testimony from both parties.

The general rule of court is to make the dependent spouse the alimony recipient. When determining alimony the court considers factors deemed relevant, such as:

  • Age of both spouses
  • Assets, liabilities, and debts
  • Behavioral factors (e.g., abandonment, reckless spending, excessive use of alcohol or drugs, cruel treatment, willful failure to provide food and shelter, indignities, illicit sexual behavior)
  • Contribution of a spouse as a homemaker
  • Duration of the marriage
  • Income—both actual and capacity to earn, dividends, and benefits (e.g., medical, insurance, retirement, social security)
  • Education of the parties
  • How serving as any children's custodian will impact earning power (i.e., earning power, expenses, financial obligations in regard to custody of minor-aged children)
  • Marital misconduct such as adultery or illicit sexual behavior up to the time of separation
  • Physical, mental, and emotional health of both spouses
  • Property brought to the marriage
  • Standard of living established during the marriage
  • Relative needs of the spouses
  • Tax implications of the alimony reward (federal, state, and local taxes)
  • Time and cost to contribute to the education or training for the dependent spouse to meet reasonable economic needs
  • Time separated while still married

How does alimony differ from child support?

Child support is a required contribution to support their offspring. Child support doesn't affect the taxes of the payor or recipient.

Alimony is maintenance or spousal support. Alimony is treated as income to the recipient and is deducted from the income of the payer and must be reported as income by the recipient. For more information on the tax implications of alimony and/or post separation support, contact a tax attorney.

What if I'm no longer able to pay alimony?

If your circumstances have changed and you aren't able to pay the amount of alimony ordered by the court or designated in a written legal document, contact an attorney to determine whether it can be modified. If alimony was court ordered, it may be possible to modify the order. If alimony was the result of a non-modifiable integrated settlement agreement, it might not be possible to modify. Regardless, unless the reasons are compelling, the courts are hesitant to modify the existing agreement.

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Child custody & visitation

Does Rice Law handle child custody cases?

Yes. Rice Law attorneys are well-versed in North Carolina family law relating child custody. We realize that child custody cases are one of the most important matters. We treat each case with great care.

What factors does the court consider when determining the child's best interests?

The court determines the child's best interest based on the following factors:

  • Acts of domestic violence between the parties
  • Safety of the child
  • Safety of either parent from acts of domestic violence against the other parent
  • With consideration to all the things that might affect the child physically, mentally, emotionally, morally, and spiritually. Though each Judge may weight factors under consideration differently, the primary factors under consideration include the:
    • Abductions, child abuse, and neglect
    • Age of the child
    • Facilitation of visitation and involvement of the other parent
    • Home environment
    • Legal complaints filed against either parent
    • Parental drug and alcohol problems—current and history
    • Parent's competency, time available to spend with the child
    • Parent's non-marital sexual relationships
    • Parent's willingness to keep the other parent involved in the child's life, or efforts to undermine the other parent
    • Presence of siblings and their relationships to the parents and each other
    • Relocations, such as moves out of state
    • Preference of the child [generally from age 10 and up]
    • Religion

In nearly all cases, the parent who isn't awarded custody will be granted visitation periods with their child.

Note: An Order of Child Custody can also include provisions for visitation rights of the grandparents. While the parents are typically awarded custody, the law provides for custody of children by others, such as grandparents, based on the case's unique circumstances.

Who will get custody of our children?

Child custody can be decided and agreed upon by the parents. However, if the parents are unable to reach agreement, a court will resolve the issue of custody. The guiding principle is in the opinion of the Judge, who will best promote the interest and welfare of the child.

Explain to me the difference between joint and sole custody.

Joint custody and sole custody are types of child custody court orders. These orders can be further divided into joint physical custody, primary physical custody, and joint legal custody. In North Carolina, the meaning of joint and sole custody is defined in an agreement or court order.

Note: It is possible for parents to share joint legal custody, but for one parent to have primary physical custody.

North Carolina Courts generally award joint custody, which gives both parents joint decision-making authority. North Carolina courts often vest primary custody in one parent and visitation in the other.

What is child visitation?

Visitation is the non-custodial parent's time with child. In North Carolina, the law is fundamentally the same with regard to deciding visitation and custody; the decision is made with consideration given to the best interests of the child, parental rights, and the child's wishes (depending on their age and maturity). Typical visitation rights include alternate weekends, half of all major holidays, a portion of the summer, and special days; some visitation schedules also include an evening for dinner or overnight stays during school breaks. Visitation rights can vary based on the child's age; for example, some judges may rule that young children have less disruptions to their environment.

If the Judge is advised that harm or danger could come to a child if visitation is not monitored, a ruling of Supervised Visitation can result. A Supervised Visitation ruling may designate location as well as who is eligible to supervise the visits (e.g., social worker, relative).

Can I refuse my spouse visitation rights if they haven't paid child support?

No. According to North Carolina law, child support payments aren't tied to visitation privileges. Though it may be easy to confuse the two, legal counsel should be sought prior to restricting visitation rights. Punishment of the other parent by restricting their visitation to the child may impair the child's welfare and subject the custodial parent to be held in Contempt of Court for violations of any existing custody and visitation order (including jail time). Contact your attorney for more information.

If I date, can it impact my child custody case?

If you're still married, consult an attorney before you date. Dating could impact your child custody case, especially if your date has contact with the child and is viewed as having a negative or detrimental effect on the child. In cases that spouses are having a difficult time reaching agreement, the third party in your child's life could be viewed as a threat to your ex's (and the grandparents) relationship with the child.

We generally recommend that transitional dating partners not be introduced to the children until the relationship is serious.

If you date, you should not cohabitate or have overnight guests of the opposite sex before consulting an attorney. Your date may be subject to liablity for criminal conversation and alienation of affection.

Do we need to go to court to establish my child's custody?

In North Carolina, parents can settle custody and visitation by private agreement. The court doesn't need to be aware of mutually agreed upon custody. It is generally in the best interests of the child, however, to establish and abide by a written document of custody and visitation. Written agreements can provide stability that may not otherwise be present, such as disrupting a child's normal life by repeatedly relocating.

Until both parents come to an agreement or a court issues a ruling on custody, both mother and father have co-equal rights to the position of the child from the marriage.

Do the courts favor one parent over the other?

No. North Carolina has abolished maternal preference, which presumed that the mother would be more caring for child during their developmental years.

What should I bring to help with the custody decision?

Rice Law has developed a comprehensive approach to the presentation of a child custody case. If we agree to take your case, you will be given a child custody notebook to complete. You will also work closely with our attorneys and staff in the preparation of your case.

You will learn what to bring with you to court from your attorney. The judge will perform an exhaustive review of your parenting skills and daily interaction with your child. People with close, regular contact may be called as witnesses (e.g., neighbors, friends, daycare staff, teachers, doctors, psychologists, activity leaders, ministers). You may also want to bring photos or videos of where your child would live with you—interior and exterior images to help convey your child's environment to the judge.

Will my child be required to speak in court?

A child may be called as a witness in a custody case. However, attorneys generally agree that the child may speak privately to the judge in chambers with the presence of a court reporter or assistant. What the child says in private to the judge is not made known to the litigants. The judge generally assures the child that what the child tells the judge is merely one consideration for the judge and that the child does not make the decision regarding their custodian. If an objection is made to the child speaking privately with the judge, the only way the child's voice may be heard is to call that child as a witness.

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Child support

What is child support?

Child support is money and health care paid by the non-custodial parent to the custodial parent for the support and care of the children. Child support is based on the policy that parents are obligated to pay for their children's support and needs, even they don't live with the children.

How is child support determined?

Both parents are required to provide for the financial support of the child. Either parent may be ordered to pay child support. After consideration is given to the earnings, estates, conditions, accustomed standard of living of the child and parents, child care, and other expenses, the Court Orders child support in amounts that are reasonable for the child's health, education, and care.

In North Carolina, the court has guidelines for calculating child support. While these guidelines don't require strict adherence by the judge, deviation from the guidelines requires a finding that deviation is appropriate and will be reflected in the child support order. As part of child support, North Carolina District Courts usually require a parent to provide health insurance for the child if they have the financial means to do so even if the child could otherwise receive medicare.

How can I get child support from my child's parent?

If the parent doesn't voluntarily pay support you can hire an attorney to assist in obtaining child support or you can contact your local child support enforcement agency. The child support enforcement agency will generally assist recipients of public assistance in establishing child support for no charge, and they help others for a $25 fee.

If a child support order has been issued, the parent was paying you directly but stopped, you may have to file a child support enforcement action. Contact an attorney or your local child support enforcement agency. If the NC State Centralized Collection Unit was processing your payments; contact them for information.

What if the parent chooses to not pay child support?

While it depends on circumstances, the parent could be arrested and held in jail until what is owed is paid, wages are withheld, licenses seized, and/or income tax refund taken. If a parent is unable to pay child support, they should contact an attorney for assistance, or file a motion to ask the court to modify the support responsibilities. An indigent parent may qualify for a court-appointed attorney to assist in their defense as they could face jail for non-payment. Rice Law, PLLC attorneys help plaintiffs and defendants, including indigents, as part of our public service commitment with North Carolina child support issues.

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Property settlements

Does Rice Law handle property settlements?

Yes.

What is equitable distribution of property?

When dividing marital property during a divorce, North Carolina law employs equitable distribution of marital property. Equitable distribution doesn't always split property equally (i.e., not fifty-fifty). With equitable distribution, the court considers distributional factors, the classification of property (marital, separate, or mixed), and other factors. Both assets and debts are considered during property distribution.

How do we equitably distribute our property?

Whether distribution is performed by you and your attorney or by the courts, the typical steps involved in equitable distribution of property are essentially the same:

  • Determine which property is marital and which is separate—jointly purchased property that was owned on the date of separation is generally marital property; property owned before marriage, inheritances, and gifts are separate property. There are legal nuances to these general statements; consult your attorney.
  • Identifying the fair market value on each item that is marital property—appraisals and experts are consulted; fair market value is what a willing buyer would pay.
  • Distribute the property in an equitable manner—if the court is making this decision, they consider many factors. If done by the spouses, the spouses may agree on virtually any arrangement.

What does the court consider when settling property matters?

When determining property distribution cases, North Carolina courts divide the marital property equally between the parties unless they determine that such division is not equitable. Court considerations for equitably distributing property include any factors deemed relevant, such as:

  • Actions taken by either party to preserve or waste marital assets
  • Age of the spouses
  • Contribution to the education or earning potential of the dependent spouse
  • Direct contributions to increase property value
  • Duration of the marriage
  • Expectation of retirement sources, such as pension and other deferred compensation rights that aren't marital property
  • Income, property, and liabilities
  • Needs of the custodial parent
  • Nature and type of property
  • Obligation for support from previous marriages
  • Physical and mental health of the spouses
  • Value of interest in a business

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Pre-nuptial agreements

Does Rice Law handle Pre-Nuptial Agreements?

Yes.

Are Pre-Nuptial Agreements legally binding in North Carolina?

Pre-Nuptial Agreements that are written, signed by both parties, notarized, and contain certain required elements are considered a legal and binding contract in North Carolina.

Note: Before signing, it is wise to have an attorney review the Pre-Nuptial Agreement. A North Carolina lawyer can advise how to best protect the interests of you and your fiancé, as well as advise of potential problems. Rice Law attorneys can work with you to create your Pre-Nuptial Agreement.

Can a Pre-Nuptial Agreement protect me?

According to North Carolina law, the Pre-Nuptial Agreement may include contract agreements between the future husband and wife including their rights regarding:

  • Making wills, trusts, and other provisions to be carried out
  • Modification or elimination of spousal support
  • Ownership rights and disposition of death benefits from life insurance policies
  • Property acquired by either or both
  • How to care for property upon separation, divorce, death, or other event
  • Responsibilities for stated property (e.g., right to buy, sell, use, lease, mortgage, manage)
  • Choice of law governing the construction of the agreement
  • Any other matter (e.g., personal rights\obligations) that isn't in violation of public policy* or statue imposing criminal penalty

*Note: The prenup doesn't generally allow issues that relate to children (e.g., custody, child support) as they are matters that violate public policy.

Are Pre-Nuptial Agreements enforceable?

If a Pre-Nuptial Agreement is challenged in court, the person requesting the challenge [Plaintiff] must prove the following:

  • Their signing of the agreement wasn't voluntarily
  • They weren't provided a fair and reasonable disclosure of property or financial obligations prior to signing
  • They didn't voluntarily and expressly waive, in writing, any right to disclose all property or financial obligations of the other party
  • They didn't have or reasonably couldn't have adequate knowledge of the other's property or financial obligations
  • The agreement is unconscionable

The above is a generalization of North Carolina Law. Contact an attorney for specific advice.

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Post-nuptial agreements

Does Rice Law handle Post-Nuptial Agreements?

Yes.

What is a Post-Nuptial Agreement?

A Post-Nuptial Agreement (also called a Post-Marriage Agreement) is a marriage contract that legally defines your relationship with your spouse.

Similar to Pre-Nuptial Agreements, post-nuptials are created to define individual legal rights of the husband and the wife; however, North Carolina Law applies more restrictions on what can be done with a Post-Nuptial Agreement. Generally, Pre-Nuptial Agreements may offer more protections than agreements written post-nuptially.

Should I get a Post-Nuptial Agreement?

The main reasons that spouses choose to establish a Post-Nuptial Agreement is to:

  • Allocate funds or property to children from a previous marriage
  • Amend a pre-nuptial agreement that was signed before marriage
  • Define and clarify ownership and division of financial assets in the event the couple divorces (e.g., property, receipt stock options, businesses started by you or your spouse)
  • Make their plans for property distribution in the case of death or divorce
  • More effectively manage their marriage partnership and responsibilities

Post-nuptials can also be used to get married couples to discuss finances, aid in reconciliation, and/or provide additional emotional security.

What if my spouse asks me to sign a Post-Nuptial Agreement?

You are well advised to consult a North Carolina attorney. Though Post-Nuptial Agreements are often presented as estate planning purposes, they should be considered as a precursor to separation. By reviewing the agreement with a Rice Law attorney who understands how North Carolina family law relates to Post-Nuptial Agreements, you'll learn the legal implications and be able to better address your rights.

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Contact Rice Law to ask your legal question.

Notice & Disclaimer: These questions were posted on Avvo, Lawguru, or a similar service. Some have been slightly altered to correct grammar while others are posted intact. This information has been posted for educational and informational purposes only. You should seek help from an attorney licensed to practice divorce and family law in the State of North Carolina because the facts of your particular situation may warrant a different answer. No attorney client relationship created through the use of this Web site. Information pertains to the State of North Carolina only.


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