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Family Law / Divorce
OUR FAMILY LAW CLIENTS’ MOST FREQUENT QUESTIONS
The end of a marriage or relationship is a difficult, life-altering process. Custody battles, separation, divorce and relationship issues bring more stress, anxiety, and uncertainty into your life than almost anything else. When you add children into the mix, already complicated marital strain becomes even more complicated and volatile. The help of a skilled and experienced family law attorney is crucial in helping you successfully navigate this process, protect your family and ensure financial stability.
When it comes to separation, divorce, custody, child support, spousal support, and asset division, each state has different laws. Each of these complicated legal issues can be confusing, so it’s important to have an attorney who can help you understand your rights and all that is involved.
- WHAT ABOUT THE CHILDREN?
When children are involved, the first thing parents want to know is how the child custody process works. If the child has resided in North Carolina for more than six consecutive months prior to filing (or for the majority of the child’s life when the child is less than six months old), you will file for custody in North Carolina. Child custody and child support are separate claims from divorce, and they can be filed at any time. There is no waiting period, and we advise our clients to start the process as soon as possible. When your relationship has come to an end, starting the legal process for custody and child support will help you and your family move forward quicker.
Child custody is not limited to the time when the parents separate. Custody can be modified even after a custody order is granted. Modification occurs when (1) a court determines that there has been a substantial and material change to the circumstances affecting the minor child’s best interests and (2) the court finds that it is in the minor child’s best interests to change the child’s custody arrangement. We have handled many modification cases and can sit down with you to go through your case and determine whether or not you have the ability to modify a child’s custody order.
We understand the complexities that come with being a parent and a military servicemember or spouse, and we are well equipped to handle your needs. Whether you have concerns about a permanent change of station (PCS), retirement, deployment, or any other military-related issue, we are here to help you with your custody needs.
Sadly, there are times when a parent needs to obtain an emergency custody order to protect the child or fight against an emergency custody order obtained by a parent who did not provide the Court the complete, accurate story. Emergency orders can be granted when a custody case is first filed or when a party is seeking to modify an existing custody order, and it is of the utmost importance that you speak with an attorney as soon as you learn of an emergency affecting your child or upon being served with an emergency order. We have extensive experience in dealing with emergency custody situations, and we can provide the advice and representation you and your family need during such an important time.
- WILL SOMEONE BE PAYING ALIMONY?
A spouse can file a lawsuit for Alimony and Post Separation Support (the temporary form of alimony paid until the case is resolved) as soon as the parties separate. To obtain (or be held liable for) Post Separation Support and/or Alimony, the Court needs to determine the following:
- Whether one spouse was substantially dependent on the other spouse for financial support during the marriage;
- What standard of living the dependent spouse was accustomed to during the marriage;
- Whether the supporting spouse has the financial ability to pay the dependent spousal support (after examining each spouse’s monthly incomes, budgets, and financial liabilities);
- Whether there was any wrongdoing that should be considered when setting the amount of support;
- What amount of support is necessary to support the dependent spouse while also considering the supporting spouse’s ability to pay.
If a spouse is now cohabitating with another person and is in a romantic relationship with that person, that spouse will not be entitled to Post Separation Support or Alimony. As a general rule, if one spouse committed adultery during the marriage, that spouse is not entitled to Post Separation Support or Alimony in North Carolina.
- WHAT HAPPENS TO THE HOUSE? WHAT ABOUT OUR RETIREMENTS? DO I NEED TO KEEP PAYING THESE DEBTS?
North Carolina has Equitable Distribution to handle property and debts. Equitable Distribution is the statutory cause of action established to govern the division of property, financial assets and debts between spouses who have separated.
As a general rule, equitable distribution provides that each spouse will receive half of the net total (value of all properties and financial assets minus the total amount of debt) of properties, debts, and financial assets, but the law does provide for instances when one spouse receives a larger amount than the other spouse. Because it is not simple, or in some cases even possible, to divide certain assets, spouses can sometimes receive “distributive” awards instead of property. Distributive awards are monetary awards equivalent to the receiving spouse’s share of the marital estate.
One of the main concerns for most homeowners going through a separation or divorce is not only determining where one lives but determining who receives the marital home, who pays for the marital home, whether the marital home should be sold and how to divide the equity / value, profit (from the sale) or debt (from the sale) of the home. There are many instances in which we can help a spouse keep the home so that the client and children can have some sense of normalcy during this difficult time.
Marital debts are also divided evenly between both parties, but like property and financial assets, one party can be given a greater share of the debt due to certain factors. Regardless of which spouse has his or her name attached to the debt, if the debt was incurred during the marriage, it is most likely considered marital debt (with some exceptions). Just like assets and property, debts are factored into the net value of the marital estate, and it’s important to consult with an attorney immediately to determine who is responsible for each debt and/or obtain orders from the court regarding payment of debts so that you can protect your credit.
While the general rule – and legal presumption – is that each spouse receives half of the net value of all property, assets and debt (combined), the courts can give one spouse a greater share of the net marital assets. There are twelve separate factors courts use to determine whether a party should receive an unequal share of the marital assets. Three of the most frequent reasons spouses receive a larger portion are (1) the other spouse having a greater earning potential, (2) the other spouse having more assets in his/her name as a result of having large amounts of separate property (property that was owned prior to marriage, inherited, or derived as a result of property / assets the spouse owned before marriage) and/or (3) tax consequences. Unlike Alimony or Post Separation Support, a spouse’s “marital fault” cannot stop a spouse from receiving his or her share of marital assets in equitable distribution, but a spouse’s efforts to waste, neglect, devalue or convert the marital property or divisible property during the period after separation of the parties and before the time of distribution can be grounds for a court to reduce the offending party’s distribution.
Because so many of our clients are military personnel or spouses, we pay special attention to military issues in asset division (along with custody and spousal support). Military retirements, Thrift Savings Plans (TSP’s), and accrued leave are divided in the equitable distribution process along with the non-military property, debts, and assets. Many have the common misconception that the parties need to be married for ten years for a spouse to have property rights in the other spouse’s military retirement, accrued leave, or TSP, but this is false. Ten years is only relevant to how the spouse’s portion is paid (whether from the service member or from the military). If the parties were not together for ten years, the non-military spouse can still receive his or her share of the servicemember’s retirement, TSP or accrued leave.
- WHEN CAN I FILE FOR A DIVORCE?
Any legally married spouse can file for divorce one year and one day after the parties separate, regardless of where the marriage occurred.
These two requirements must be met:
- One spouse must be a legal resident of North Carolina, and they must have resided in the state for at least 6 months before filing.
- Both spouses must have lived separate and apart for at least one continuous year, and at least one spouse must have planned on leaving the marriage throughout that time.
The separation requirement is vital. While you do not have to file any paperwork to begin a separation, you or your spouse must move out of the marital residence and have the intent to leave the marriage. The separation requirement in North Carolina is for one continuous year.
These are the only requirements to file. In North Carolina, you don’t need any specific grounds for divorce. The spouse who files for divorce does not need to prove the other spouse was at fault in order to get an absolute divorce.
We are often asked if it is possible to obtain an annulment in North Carolina. Despite popular belief, annulments are not effortless to obtain. Annulments are only issued if the marriage is deemed to be invalid, and this makes North Carolina’s requirements for annulments hard to meet.
- MY SPOUSE FILED FOR DIVORCE IN ANOTHER STATE, WHAT DO I DO?
If someone files for divorce in another state, but you live in North Carolina, you can still file for child custody (as long as North Carolina has jurisdiction based upon the children’s residency), alimony, child support, post-separation support, and equitable distribution. If someone files for divorce in North Carolina, you can counterclaim for child custody (if the children have lived here for six months), alimony, child support, post-separation support, and equitable distribution against the spouse who filed for divorce. In these situations, you MUST file your complaint or counterclaims before the divorce is granted.
- WHAT IF WE AGREE AND DON’T WANT TO FIGHT IN COURT?
Even when the parties agree on everything and want to enter into an out of court settlement – normally referred to as a separation agreement – there is a need for certain court orders for custody, child support and division of certain financial assets. We deal with these situations frequently and can help you and your family formalize the terms of your agreement as seamlessly as possible.
CONTACT OUR EXPERIENCED FAMILY LAW ATTORNEYS AND LET US PROTECT YOUR ASSETS AND PROTECT YOUR FAMILY
The Richardson Firm’s attorneys know how difficult the end of marriages and relationships can be. Our firm has over a century of legal expertise and our veteran staff is here to help you. Whether it is child custody, child support, alimony, post-separation support, equitable distribution, or divorce, we are here to help you. After the initial litigation has ended, our staff will remain available to help with any enforcement, modification, or contempt issues that arise.
With our experience in handling military matters, we understand how Army, Navy, Air Force, and Marine Corps personnel and retirees can have special considerations in family law situations. Even after retirement, former service members need the knowledge and skill of an attorney that is well versed in military divorce, and The Richardson Firm’s experts offer that to each and every client.
If you have questions or if you are faced with a custody, separation, divorce, alimony, property division / equitable distribution, support, modification, enforcement, or contempt issue, do not hesitate to contact The Richardson Firm. Everything we do is confidential, and we will help provide the legal advice and representation you need to move forward with your life, protect your assets, and protect your family. We have an array of payment options to help our clients, and we can explain these options to you in our consultation.
Start your consultation by calling us today at (910) 488-5050.