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Family Law FAQ

Divorce

Question. What are the requirements for filing for divorce in North Carolina?

A. You and your spouse must having been living separate and apart for one year. At least one of you must intend that the separation be permanent. Additionally, one party must have resided in North Carolina for 6 months prior to filing.

Question. I have only been married for a couple of months. Can I have my marriage annulled instead of having to wait a year to get divorced?

A. No, not just based on the length of marriage. Unless you meet one of the statutory factors for annulment, you must go through the divorce process. You may be entitled to have your marriage annulled in the following circumstances: 1) you and your spouse are related as less than first cousins, 2) one spouse was under the age of 16 at the time of marriage, or 3) one spouse was incompetent at the time of marriage. A bigamous marriage (one in which one spouse was already legally married) is automatically void and does not require an annulment.

Question. Can my spouse refuse to divorce me?

A. No. North Carolina is a no-fault divorce state. As long as all legal and procedural steps are followed, a judge will grant a divorce even over the objection of the other spouse.

Question. My wife and I want to separate and eventually divorce but we can’t afford to pay for two separate households. Can we just live in separate bedrooms for one year and then file for divorce?

A. No. North Carolina requirement for living “separate and apart” for at least a year literally means separate residences, not just separate bedrooms.

Question. What happens if my spouse and I get back together for a few days and then separate?

A. A resumption of the marital relationship restarts the one year separation period. North Carolina courts have generally ruled that isolated instances of sexual activity or merely spending substantial time with your spouse do not constitute a resumption of the marital relationship. However, if you have been living separately for 11 months and then reconcile for 3 weeks and separate again, you will probably be deemed to have resumed the marital relationship and will have to wait another year before filing for divorce.

Question. Can I date during the one year my spouse and I are separated prior to filing for divorce?

A. You can, but if you are going to be filing for alimony or are involved in a child custody dispute, it is probably not the best idea. With regard to alimony, you open yourself up to the allegation that you were engaged in illicit sexual activity prior to separation. If a judge believes that is the case, you will be barred from receiving alimony. If you are involved in a child custody case, the judge may not look favorably on a dating relationship if it negatively impacts the children.

Question. Am I required to have a legal separation agreement prior to filing for divorce?

A. No, although you may wish to do so. A legal separation agreement allows you and your spouse to resolve alimony, equitable distribution, child custody, child visitation, and child support issues while you are still within the one-year statutory separation period. If signed by both parties, this is a legally binding contract. You may also wish to have your attorney prepare a “consent order” whereby a judge incorporates the terms of the separation agreement into a court order. Doing so provides additional remedies for enforcing the terms of the agreement.

My mother is 80 years old and remarried 2 years ago. Her new husband now has Alzheimer’s and needs to move into a nursing facility. His family will not cooperate with a Medicaid application and he is no longer competent. Is there any way for my mom to obtain a divorce?

A. Although not commonly used, North Carolina statute provides for a process by which the competent spouse can file for divorce from a spouse based on incurable insanity. Mental illness or dementia that renders one spouse unable to understand what he is engaged in doing and the nature and consequences of his actions, for which there is no reasonable hope of recovery, qualifies as incurable insanity. Prior to filing for divorce under this statute, the spouses must have lived separate and apart for three years.

Alimony

Question. Does the wife always receive alimony?

A. No. Either spouse may file for alimony and it may or may not be granted. To qualify for alimony, you must be a “dependent spouse” and your spouse must be a “supporting spouse” as defined by state statute. Additionally, the supporting spouse must have the ability to pay alimony. The amount and duration of any award of alimony is based on numerous factors and is at the discretion of the presiding judge.

Question. My wife had an affair while we were married. Now she has filed for divorce and is asking for alimony. Can she be awarded alimony?

A. Probably not. If the judge (or a jury) determines that she engaged in “illicit sexual activity” during the marriage and prior to separation, she is barred from receiving alimony unless you also engaged in “illicit sexual activity”.

Question. I’ve been paying my wife alimony but I found out she has been living with a man for the past few months. Do I have to keep paying?

A. Consult with an attorney to file a motion to terminate the alimony order. If her activities meet the legal definition of “cohabitation” the alimony order will be terminated.

Question. Do I have to wait until I’ve been separated for one year and file for divorce before asking for alimony?

A. No. In fact, you must have an alimony action pending at the time your divorce is finalized. Once you receive an absolute divorce, you lose the right to ask for alimony.

Question. I am a U.S. citizen. I petitioned for my wife to become a permanent resident and had to sign an affidavit of support. Now we are divorcing and she is asking for alimony, but the affidavit of support says she has to support me. What happens?

A. This is a very sticky issue. Many family court judges do not understand the intricacies of the affidavit of support form I-864. It is a legally binding contract between the intending immigrant and the U.S. citizen or LPR as well as a contract between the U.S. citizen or LPR sponsor and the U.S. government that requires the sponsor to provide for the intending immigrant at 125% of the poverty level. There is no duty of the intending immigrant to mitigate this obligation by earning his or her own income, nor does this support obligation terminate upon divorce. There is complete agreement that the I-864 support obligations are enforceable in federal court. However, many family court judges will not, or do not acknowledge that they have the authority to enforce an I-864 affidavit of support and find that alimony is a separate and distinct issue. Therefore, it may be necessary to simultaneously pursue a federal court action suing your wife for enforcement of the affidavit of support, even as the family court judge makes an alimony determination.

Equitable Distribution

Question. What is equitable distribution?

A. Equitable distribution is the process of classifying and distributing property and debts.

Question. Does equitable mean equal?

A. Equitable means fair. In North Carolina, it is presumed that an equal distribute of assets and debts is fair to both parties. However, either party may ask the judge for an unequal distribution based on specific facts and circumstances. Generally, the most variation a judge would make would be a 60/40 distribution. But absent unusual conditions, a 50/50 split will normally be deemed fair.

Question. My husband and I are divorcing and the judge ordered us to family financial mediation. What is that?

A. In North Carolina, judges are required to refer all cases involving equitable distribution to mediation. During this session, you, your spouse and your attorneys (if applicable) meet with a certified family financial mediator in an effort to reach an agreement about your property division. While this mediation process is separate and distinct from child custody mediation, your family financial mediator does have the authority to help you resolve issues other than equitable distribution including alimony, child support, and child custody/visitation. Our lead attorney, Kelli, is a certified family financial mediator and can offer additional insight into the mediation process.

Question. My parents gave us money for the down payment on our house. Does that make the house mine when we divorce?

A. No. Most gifts made during marriage are presumed to be to the couple. In addition, mortgage payments made during the marriage will, at the very least, make the house split property. In all likelihood, however, the home will be deemed marital property.

Question. What is the difference between marital property, separate property, divisible property, and mixed property?

A. Marital property is all property acquired by either or both spouses during the marriage, prior to the date of separation that does not fall under the definition of separate or divisible property. The presumption that all property acquired during the marriage is marital property unless proven otherwise. Separate property is real or personal property that either spouse owned prior to the marriage or inherited or received as a gift during the marriage. Property is classified as divisible under several circumstances. The most common examples of divisible property are the change in value of property and passive income such as interest and dividends from marital property after the date of separation but before final distribution. Mixed property has characteristics of two of more classifications. An example would be a home that was in the wife’s name prior to marriage. After marriage, the home is still classified as her separate property. However, if marital funds are then used to make mortgage payments, the increase in value would be marital property.

Question. All the credit cards are in my name but the charges were made while my spouse and I were together. Will my spouse be required to pay half?

A. All debt incurred while you were married is classified as marital debt and will be divided as part of your equitable distribution case. He may or may not be required to pay half of that particular credit card balance, but in general, all assets and debts will be divided between the spouses.

Child Custody & Visitation

Question. Doesn’t the mother usually get custody of the children?

A. No. In North Carolina there is no presumption regarding custody; not that either parent is more likely to be awarded custody or that joint custody will be ordered.

Question. What is joint custody?

A. There is physical custody and legal custody. Physical custody refers to the living arrangements of the children. Legal custody refers to the decision-making authority. Joint custody means that each parent has physical custody for at least 123 nights per year and that decision-making is shared equally.

Question. My husband has never been involved much in our son’s life. Now that we are divorcing, do I have to allow him to see our son?

A. Unless there are extreme, extenuating circumstances whereby visitation with your husband would be harmful to your son, yes, your husband will be granted visitation. The attorneys at KYA Law can give you a realistic assessment of how a judge might view the situation and what visitation is likely to be awarded. This is very useful information, as it can guide your position when negotiating with your spouse in hopes of achieving agreement rather than placing custody and visitation decision in the hands of a judge.

Question. If my ex-wife and I have joint custody, can she move out of state and take the children?

A. Not without seeking permission from the court. Relocation is a substantial change that warrants review and possible modification of the custody order. The judge will consider your ex-wife’s reason for moving, whether and why you oppose the relocation, the impact that the move would have on visitation, and how it would affect your children’s lives.

Question. My wife and I are fighting over custody of our children. The judge ordered us to child custody mediation. What is that?

A. In most North Carolina counties, including Mecklenburg and Cabarrus counties, all child custody cases must be referred to child custody mediation prior to trial. You and your spouse will meet together with a child custody mediator employed by the county. This mediator will have a background in child psychology, counseling, and/or social work. Your attorneys are not involved in these meetings. The goal is to reach an agreement and develop a parenting plan that specifies child custody and visitation schedules. This is a separate process from family financial mediation that is required in equitable distribution cases.

Child Support

Question. My wife has primary custody of our two children. Does this mean I have to pay her child support?

A. Yes. Each parent has the legal responsibility to provide financial support for his or her child. In North Carolina, the amount that each parent must contribute is determined by the relative income and expenses of each parent. Your attorney at KYA Law will be able to give you a good estimate of the range of support you could expect a judge to order.

Question. My husband cut his hours to part-time and says he can’t afford to pay child support. Can he get away with that?

A. Probably not. If the judge determines that your husband voluntarily reduced his income for the purpose of avoiding or reducing his child support obligation, the judge may impute income. This means that the judge would base his child support amount on the income he should be earning but for his bad faith in cutting his hours.

Question. My husband was ordered to pay $600 a month in child support but refuses to pay. How do I get the money?

A. The various means of enforcing the payment of child support depend upon how the manner and amount of support was decided. If the support arrangement was made by agreement and not incorporated into a court order, you can file a breach of contract action seeking a civil judgment requiring your spouse to pay. If the child support was part of a court order, there are numerous options, including garnishment of wages, transfer of property to meet the obligation, contempt of court, or revocation of your husband’s driving and/or professional licenses until paid.

Question. My wife is refusing to let our children visit me even though we have a visitation schedule. Can I stop paying child support until she lets me see them?

A. No. The Court considers those to be two separate issues. Contact your attorney at KYA Law to file a motion to enforce the visitation order. In the interim, continue making all required child support payments.

Question. My wife’s parents have custody of our children. Will either of us be required to pay child support?

A. Yes. Parents are responsible for providing financially for their children. The support amount each parent is required to pay will be based on proportional income of each.

Domestic Violence

Question. Do domestic violence laws apply only if the parties are married?

A. No. In North Carolina, domestic violence laws apply to current and former spouses, household members, children, and persons who have a child in common.

Question. My husband keeps sending me threatening emails and text messages. Does that qualify as domestic violence?

A. Probably, yes. Any act in which the perpetrator intentionally causes or attempts to cause bodily injury or by threatening the use of force, places a qualifying person in fear of “imminent serious bodily injury” constitutes domestic violence. North Carolina domestic violence statutes also cover “continued harassment” through the use of emails, phone calls, and text messages if they serve only to terrorize the victim.

Question. How do I get a restraining/protective order?

A. The first step is to file a complaint with the clerk of court or magistrate in the county in which you live. You must state the specific facts that constitute domestic violence and your relationship to the abuser. You may be able to obtain an ex parte temporary protective order that lasts up to 10 days to give time for the other party to be served with notice. Within 10 days, the court will schedule a hearing to determine whether to make the order permanent.

Question. How long does a restraining order last?

A. A permanent protective order is valid for one year and automatically terminates unless you seek to have the order renewed.

Question. Is it better to take my children and leave our house or try to get my husband to leave?

A. If you are in fear for you or your children’s safety, leave the house and get to a safe situation. Then contact law enforcement, a domestic violence assistance organization, and/or KYA Law to discuss plans and options. If you do not have immediate safety concerns, it could be advantageous to consult with our attorneys prior to leaving, as there may be options available to protect yourself while you and your children remain in the home throughout the divorce process.

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Law Office of Kelli Y. Allen, PLLC

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