Domestic & Family Law

Family Law

Do you have issues involving your family? Do you have concerns arising through the course of a marriage, in prepartion for the termination of a marriage, or in anticipation of a marriage? »

If you have a domestic matter, such as child custody or support, alimony or post separation support, legal separation or divorce, property distribution, or anything of the sort, your local legal team can help you. It is oftentimes important to see a lawyer immediately, and with our team of lawyers and five office locations, we can oftentimes set up an appointment for you on the same day you call at a location convenient to you.

Domestic situations can involve many issues. They can involve child custody and support, a legal separation or divorce from bed and board, an absolute divorce, post-separation support, alimony, and/or equitable distribution. Some cases may involve one or more of these, while others may involve all of them. There are also many different aspects under these general topics that can be discussed with you in further detail if your case warrants that. Each situation is specifically related to your personal situation.

Your goal in any domestic case should be to obtain a result that is in the best interests of all concerned. Sometimes, this is difficult to achieve, but should remain the goal throughout. Oftentimes in a domestic battle the court struggles to do what is right based on the best interests of all involved.

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? »

Premarital Agreement

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.

.

How Do I Change My Name Back?

Do you want to change your name or that of a child?

You may include a request to change your name in your divorce complaint. The name change can be included in the divorce judgment.  You cannot change your name to any name in this process.  You may resume your maiden name. You may also resume a former married name under certain circumstances.

.

How Do I Get a Civil Restraining Order?

Have you had a protective order taken out against you? There are serious implications surrounding your rights in the future, especially involving guns/firearms. Do you need help presenting your case to a court if you had to take out a protective order? »

You have to file a Complaint (lawsuit) seeking a Domestic Violence Protective Order (otherwise
known as a restraining order). If it is at night or on the weekend, you do this through the magistrate’s office. If it is during the week, you do it through the civil clerk of court.  In the
 Complaint, you set out the details of the act of violence or threat of violence that caused you to seek the Domestic Violence Protective Order. You will then appear before the judge or magistrate to describe what happened. If the judge or magistrate determines you are entitled to an emergency Ex Parte Protective Order, it will be issued at that time. Your abuser is not notified or present for the emergency hearing. The emergency order is valid until there can be a hearing on the issue, at which hearing the abuser will be present.  This hearing is held within 10 days.  If the judge determines at the full hearing that you are entitled to a Domestic Violence Protective Order, one will be issued. This order will be valid for one year, but may be renewed at the end of one year for an additional time of up to two years.

.

What About Alimony and Property Divison?

The court will not deal with these issues in the domestic violence process. You will need to file a separate Complaint seeking alimony and equitable distribution.

You may have questions about Pre-Marital and Post-Marital Agreements, and your local legal team is glad to discuss these options with you if they are applicable. In general, parties who are 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. 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.

We thank you very much for reading this basic information about Wright, Worley, Pope, Ekster & Moss, PLLC. If you need further help, please contact our office to set a team to see a member of your local legal team.

Here are some links from the North Carolina Bar Association that will provide you with some additional information relating to domestic matters.

Domestic Violence »

Marriage In North Carolina »

Child Custody/Visitation & Child Support »

.

What About Custody and Child Support?

The judge may deal with these issues in the domestic violence process. However, many judges prefer that those issues be handled in a separate court action.

.

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:

  1. Considering the parties’ accustomed standard of living.
  2. The present employment income and other recurring earnings of each party from any source.
  3. Their income-earning abilities.
  4. The separate and marital debt service obligations.
  5. Those expenses reasonably necessary to support each of the parties.
  6. 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:

  1. The relative earnings and earning capacities of the spouses.
  2. The ages and the physical, mental, and emotional conditions of the spouses.
  3. 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.
  4. The duration of the marriage.
  5. The contribution by one spouse to the education, training, or increased earning power of the other spouse.
  6. 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.
  7. The standard of living of the spouses established during the marriage.
  8. 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.
  9. The relative assets and liabilities of the spouses and the relative debt service requirements of the spouses, including legal obligations of support.
  10. The property brought to the marriage by either spouse.
  11. The contribution of a spouse as homemaker.
  12. The relative needs of the spouses.
  13. The federal, State, and local tax ramifications of the alimony award.
  14. Any other factor relating to the economic circumstances of the parties that the court finds to be just and proper.
  15. 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?

.

Adoption

Are you looking to adopt a child? Have you been a caretaker for a child and want to know how to make him/her a permanent member of your family?

When a child is adopted, he has the same legal status as a natural child, including the right to financial support from his parents and the right to inherit property from them. The biological parents of a child who has been adopted are no longer legally his parents. Whether to adopt is an important decision for both the child and the adoptive parents. All of the legal and social aspects of an adoption should be discussed with the lawyer who handles the adoption and with the social agency responsible for the placement.

.

Equitable Distribution

Are you are 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?

Equitable distribution is the distribution of marital assets and marital debt. There is a presumption that any item that came into the marital estate after the date of marriage is considered marital property and shall therefore be subject to distribution. However, if something is considered a separate item, it would be awarded to the party whose it is and they would have to prove that it was separate property. An example of separate property coming into the marriage would be a gift from a relative of some sort. Furthermore, any items that were owned prior to the marriage that were not placed in the name of both parties would generally be considered separate property. As an example, if you owned a car prior to the marriage and traded that car and got another car during the marriage, that second car would still usually be considered your separate property.

The strong presumption in North Carolina is that martial assets will be divided equally, or 50/50. If a party wants to have an unequal distribution, they must carry the burden of proving that an equal division would not be fair or equitable and that an unequal division would in fact be equitable.

The factors the court considers are:

  1. The income, property, and liabilities of each party at the time the division of property is to become effective.
  2. Any obligation for support arising out of a prior marriage.
  3. The duration of the marriage and the age and physical and mental health of both parties.
  4. The need of a parent with custody of a child or children of the marriage to occupy or own the marital residence and to use or own its household effects.
  5. The expectation of pension, retirement, or other deferred compensation rights that are not marital property.
  6. Any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of such marital property by the party not having title, including joint efforts or expenditures and contributions and services, or lack thereof, as a spouse, parent, wage earner or homemaker.
  7. Any direct or indirect contribution made by one spouse to help educate or develop the career potential of the other spouse.
  8. Any direct contribution to an increase in value of separate property which occurs during the course of the marriage.
  9. The liquid or nonliquid character of all marital property and divisible property.
  10. The difficulty of evaluating any component asset or any interest in a business, corporation or profession, and the economic desirability of retaining such asset or interest, intact and free from any claim or interference by the other party.
  11. The tax consequences to each party.
    • 11A. Acts of either party to maintain, preserve, develop, or expand;  or to waste, neglect, devalue or convert the marital property or divisible property, or both, during the period after separation of the parties and before the time of distribution.
    • 11B. In the event of the death of either party prior to the entry of any order for the distribution of property made pursuant to this subsection:
  12. A. Property passing to the surviving spouse by will or through intestacy due to the death of a spouse.
    B. Property held as tenants by the entirety or as joint tenants with rights of 
survivorship passing to the surviving spouse due to the death of a spouse.

    C. Property passing to the surviving spouse from life insurance, individual retirement accounts, pension or profit-sharing plans, any private or governmental retirement plan or annuity of which the decedent controlled the designation of beneficiary (excluding any benefits under the federal social security system), or any other retirement accounts or contracts, due to the death of a spouse.
    D. The surviving spouse's right to claim an “elective share” pursuant to G.S. 30-3.1 through G.S. 30-33, unless otherwise waived.

  13. Any other factor which the court finds to be just and proper.
Please note it is important that the only marital misconduct that plays a part in equitable distribution is that which wastes marital assets. An affair or other bad behavior would not affect an equitable distribution award, unless a waste of marital assets can be proven.
The courts in North Carolina generally like to do what is called an in-kind distribution. In other words, they like to distribute the items as they are, rather than liquidate or sell the items and just use money. It is therefore important that you list all of the property that is owned as of the date of separation on a Pre-Trial Order form that you will be given.
Information you would need would be listing item in as specific detail as possible, the fair market value of said item on the date of separation, any debt associated with the item on the date of separation, and if you have been separated for a while and there is debt, who has paid the debt and how much. Other debts are equally as important, including credit cards, mortgages, financing on vehicles and anything like that. It is also important to know and keep track of what debts have been paid from the date of separation until you get to trial.
Equitable distribution is subject to mandatory mediation in North Carolina in a proceeding where the parties use a nonpartisan mediator to attempt to resolve all aspects of property distribution..

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 Do I Do if I am the Victim of Domestic Violence?

Get safe immediately and call 911. If you do not have a safe place to go, go to a shelter or to a public place. Through the civil system you can seek a restraining order. The police can assist you in filing criminal charges.

Have you had a protective order taken out against you? There are serious implications surroinding your rights in the future, especially involving guns/firearms. Do you need help presenting your case to a court if you had to take out a protective order? »

.

What Are the Grounds for Divorce?

There are only two grounds for divorce in North Carolina:

  1. Separation for one year
  2. 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.

.

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.

.

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 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.

.

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.

.

Continue Reading

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.

.

What Is Sole Custody?

Sole custody means that one person has sole decision making power over a child and typically has primary physical custody of that child.

.

What Is Joint Custody?

Joint legal custody means shared decision-making power over a child. It does not mean shared physical custody of the child. Joint custody means shared decision-making power over a child and shared physical custody of the child. It does not necessarily mean equally shared physical custody. When parents have joint custody, they share in major decisions about a child, and often each parent has the child more than every other weekend. For joint custody to be successful, the parents need to be able to communicate effectively and to cooperate in parenting their child together.

.

What Are Visitation Rights?

If one parent has custody, the other has the right to have visitation with his or her child. There are no general rules about when and how much visitation the noncustodial parent should get. That depends on various factors including the ages of the children, the children’s schedules, how far apart the parents live, and the work schedules of the parents. When determining a visitation schedule for the noncustodial parent, the parties (or the Court) should consider weekdays, weekends, holidays, and summer. As with custody, the parties may agree on visitation in an Agreement. If they cannot agree, they can try mediation or arbitration. If they do not wish to 
try mediation or arbitration, they can go to court and let a judge decide.

.

Is Custody Ever Permanent?

No. Custody and visitation arrangements are always subject to change when circumstances affecting the child’s best interests change substantially.

.

Can the Child Decide?

No. The court may consider the wishes of older children, but the court will not let the children decide custody or visitation issues.

Child Support in North Carolina is based upon the income shares model. This is where the gross monthly income of both parties are taken and put in a chart that has been developed by a commission, and certain things are calculated on that chart in order to come up with the recommended child support amount pursuant to the North Carolina Child Support Guidelines. If the parties’ combined income is less than $300,000 per year, child support is determined based on the North Carolina Child Support Guidelines.

There are generally four numbers that are needed to calculate child support:

  1. Mother’s gross monthly income.
  2. Father’s gross monthly income.
  3. Children’s portion of the monthly health insurance premium.
  4. Work-related childcare costs.

The court will usually use your tax returns or recent pay stubs or some other comparable form of proof for your wages.

Other things that are important to consider with child support are:

  1. If you are under any preexisting child support order for any other children.
  2. If there are any other children living in your household that are your children either through adoption or naturally.
  3. Who pays health insurance for the child and how much it is.
  4. Who pays daycare and how much it is, and if there are any exceptional medical needs or other extraordinary expenses relating to the child.

There are three charts that are used in North Carolina for child support:

  1. The first chart is based upon the standard primary custody and visitation arrangement described earlier.
  2. The second chart is based on the non-custodial parent has over 123 nights with the child.
  3. The third chart is based on a split custodial arrangement.
There are different worksheets used in the calculation depending on the custodial arrangement. The Guidelines and the worksheets are available at the Clerk of Court. You can also click here: North Carolina Child Support Guidelines
.

When Does Child Support Terminate?

Child support generally terminates when a child turns 18 or graduates from high school, whichever occurs later. If the child turns 18 before graduation, child support continues until graduation. If the child graduates before turning 18, child support continues until the child turns 18. Child support may terminate earlier or extend later but only in certain rare circumstances. There is no legal obligation to pay for college.

.

What Happens if I Don't Pay?

You can be held in contempt or prosecuted for failure to pay child support. You can be put in jail. Your driver’s license and other licenses can be suspended. Your tax refunds can be intercepted. The courts have a host of options to enforce child support orders.

.

Can Child Support Be Changed?

Yes. Either parent may seek a change (increase or decrease) in child support at any time if a substantial change in circumstances has occurred after the order was entered by the court. A substantial change in circumstances is presumed by the court if the request to change the support order is made three or more years after the entry of the order and there is a 15% difference between the amount of support being paid and the amount of support that would be required with new calculations under the Guidelines.

.

What Is the Court Procedure In Custody/Visitation Cases?

One of the parties begins the process by filing a Complaint (lawsuit) for custody or visitation. The parties generally must attend mandatory court mediation before a trial will be scheduled. In some jurisdictions, the parties must also attend parent education classes. In extreme cases, the court may appoint a Guardian ad Litem to represent the children or a mental health professional to perform a psychological evaluation of the parties and/or the children. At a trial, the court will hear evidence and will decide what custody and visitation arrangement is in the best interests of the children.

In North Carolina, child custody is based on legal custody and physical custody. Legal custody is usually joint and will involve the major life decisions that need to be made regarding the child. For joint custody to be successful, the parents need to be able to communicate effectively and to cooperate in parenting their child together. Physical custody is more detailed and we will describe that now.

The initial child custody determination is based on the best interests of the minor child. This is in the typical scenario where a mother and father separate and have a custody dispute. The court will look at all aspect of the child’s life, as well as the parents, and make a determination as to where the child’s best interest will be served.  There is no presumption favoring mothers over fathers or vice versa. All other things being equal, mothers and fathers have equal rights to the custody of their children.

There is though 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, they can lose those protected rights if they take actions that are inconsistent with their protected status. If you are a grandparent or aunt or uncle or other third party, and you are seeking custody, there is a large burden you must overcome in order for you to obtain custody. Parents have a constitutionally protected paramount status to custody. There must be some very egregious facts, which can be discussed in detail with you in order for a third party to obtain custody of the minor child.

Assuming two parents, the court will look at all facts and then award custody to the party with whom the child’s best interest will be served. Under the standard custody arrangement, there would be visitation with the non-custodial parent. The parties can agree on absolutely anything, and the Court can do whatever it feels is in the children’s best interests.

Oftentimes people hear about a standard schedule for visitation. For example: every other weekend from Friday to Sunday at a certain time, say 5:00 p.m. or 6:00 p.m. Father’s Day with the father regardless of scheduling. Mother’s Day with the mother regardless of scheduling. Usually some block of time with the non-custodial or visiting parent on the child’s birthday. The holidays can be split either in alternating years or half-and-half during the particular holiday break. Usually 3 nonconsecutive weeks during the summer with the non-custodial parent.

While this is the typical arrangement many people think about, the underlying key fact is what is in the best interest of the child. Some other examples might include week to week or extended weekends Thursday instead of Friday or Monday instead or Sunday. A lot of this will depend on various factors including the ages of the children, the children’s schedules, how far apart the parents live, what school or schools the children attend, and the work schedules of the parents.

With any custody case, expectations must be realistic. For example, if one party does not want the other party to have any visitation whatsoever with the child, this is an unrealistic expectation. Absent unfitness, it is extremely unlikely that a court would stop a parent from having visitation with their child.

Custody and visitation arrangements are always subject to change when circumstances affecting the children’s best interests change substantially. If you are seeking a modification of child custody, this is a two-prong test. The first prong requires that the moving party demonstrate a material and substantial change in circumstances that affects the welfare of the child. If this can be done, then the first prong is met, and then the court will look at the best interest of the minor child. It is important to note that this first prong must be met before the court will consider the best interest of the child. If there is not a material and substantial change of circumstances that affects the minor child, then there will be no consideration of the best interest of the minor child.

Also note that while the court may consider the wishes of older children, the court will not let the children decide custody or visitation issues.

.

How Is Custody Determined?

Custody may be agreed upon by the parties. If it is, the parties may set out the terms of their custody agreement in a Separation Agreement or Parenting Agreement that are not usually filed with the court or in a Consent Order that is filed with the court. If the parents are unable to agree on their own, they can try mediation or arbitration. If they do not want to try arbitration, they can go to court to let a judge decide but in most Districts they will be required to attend mediation through the court system before they can be heard by a judge.

.