Common Questions about Divorce and Family Law

1. What is a legal separation?

Legal separation is term that commonly means a married couple is living separate and apart pursuant to a separation agreement or a court ordered separation in a divorce from bed and board action. This is sometimes confused with the legally required period of separation that is prerequisite to a divorce. A legal separation is not a divorce. Even though you may be legally separated, you still must file a divorce action and get a judge to enter a divorce judgment.

2. How do married couples obtain a divorce?

MARRIED COUPLES become legally entitled to a divorce in North Carolina by living separate and apart from a spouse for one year without intent to resume a marital relationship and by being a resident of the state for at least six months prior to filing for divorce. The parties must file a verified complaint and have it served on their spouse before a divorce is granted. The key to this idea is that a person can prove that they have been separated for at least one year. One way to avoid any disputes about the length of separation is to have a written separation agreement.

3. How is child custody determined?

In North Carolina, the custody of minor children is held by both parents until they enter into an agreement to the contrary or until a court orders differently. It is very common that people agree or that courts order that one parent has the children the majority of the time and that the other parent sees the children on a regular schedule referred to as visitation or as secondary physical custody.

The use of mediation, both private mediation and court-ordered mediation, is very common for the determination of custody so that both parents have decided what they want their children’s living arrangements to be when they are separated. However, if a court must determine the custody of children, the standard which the Court uses is the best interest of the child or children. This means that the Court will look at the evidence presented in a hearing and determine what the court finds to be the best situation for the children including where they will live, how much child support will be paid and when the children will see each parent.

4. How is child support determined?

North Carolina uses the North Carolina Conference of District Court Judges Child Support Guidelines. This is an income shares approach which means that the income of each parent is added together to produce a monthly income figure. Based upon that figure, the Conference of District Court Judges has adopted a pre-determined amount that set of parents should contribute to the support of their children. Each parent’s portion is determined based on the percentage that parent’s income is to the total income of both parents. Worksheets have been developed to help parents make these calculations and are available at www.nccourts.org. Important information needed to determine the correct amount of child support would be each parents monthly income; the costs of any medical or dental insurance for the children in question; the cost of any work-related daycare for the children in question; the number of nights the children spend in each household every year; and, the number of the parents’ other children in either parent’s household or for whom they pay support. The written Guidelines explain how each number figures into the calculation of support for any children.

5. How is alimony determined?

North Carolina determines alimony based upon the incomes of the parties, the standard of living during the marriage and a variety of other factors which would demonstrate whether the party who seeks alimony is a dependent spouse. A dependent spouse is one who, whether husband or wife, is actually substantially dependent upon the other spouse for his or her maintenance and support or is substantially in need of maintenance and support from the other spouse. The party from whom support is sought must be a supporting spouse. A supporting spouse is a spouse, whether husband or wife, upon whom the other spouse is actually substantially dependent for maintenance and support or from whom such spouse is substantially in need of maintenance and support.

6. What is equitable distribution?

Equitable Distribution is the process through which a court determines the distribution of the parties’ marital and divisible property. North Carolina law defines three types of property which the court must identify and distribute between the parties:

(1) “Marital property” means all real and personal property acquired by either spouse or both spouses during the course of the marriage and before the date of the separation of the parties, and presently owned, except property determined to be separate property or divisible property in accordance with subdivision (2) or (4) of this subsection. Marital property includes all vested and nonvested pension, retirement, and other deferred compensation rights, and vested and nonvested military pensions eligible under the federal Uniformed Services Former Spouses’ Protection Act. It is presumed that all property acquired after the date of marriage and before the date of separation is marital property except property which is separate property under subdivision (2) of this subsection. This presumption may be rebutted by the greater weight of the evidence.

(2) “Separate property” means all real and personal property acquired by a spouse before marriage or acquired by a spouse by bequest, devise, descent, or gift during the course of the marriage. However, property acquired by gift from the other spouse during the course of the marriage shall be considered separate property only if such an intention is stated in the conveyance. Property acquired in exchange for separate property shall remain separate property regardless of whether the title is in the name of the husband or wife or both and shall not be considered to be marital property unless a contrary intention is expressly stated in the conveyance. The increase in value of separate property and the income derived from separate property shall be considered separate property. All professional licenses and business licenses which would terminate on transfer shall be considered separate property.

(3) “Divisible property” means all real and personal property as set forth below:

a. All appreciation and diminution in value of marital property and divisible property of the parties occurring after the date of separation and prior to the date of distribution, except that appreciation or diminution in value which is the result of post-separation actions or activities of a spouse shall not be treated as divisible property.

b. All property, property rights, or any portion thereof received after the date of separation but before the date of distribution that was acquired as a result of the efforts of either spouse during the marriage and before the date of separation, including, but not limited to, commissions, bonuses, and contractual rights.

c. Passive income from marital property received after the date of separation, including, but not limited to, interest and dividends.

d. Increases and decreases in marital debt and financing charges and interest related to marital debt.

When parties separate, they may determine what property they wish to divide and how they are going to divide it. However, if the parties can not decide, then they may turn to the Courts to resolve this matter which it does by determining which type of property the parties can not agree about, its value and to whom it should be awarded.

For compassionate legal counsel in your divorce, custody or family law issue, contact veteran Winston-Salem divorce lawyer Eleanor Panetti.