Frequently Asked Questions
Can child support be resolved without going to court?
It is not always necessary to go to court to establish and memorialize a child support obligation. If the parties can reach an agreement regarding the amount of child support to be paid, then they can create either a consent order or an agreement for child support. For more information about the pros and cons of an agreement versus a court order, see the Agreements FAQs page. (hyperlink “Agreements FAQs”)
Should I meet with an attorney before deciding on mediation or arbitration to resolve my family law matter?
There are distinct differences between mediation and arbitration, and meeting with an experienced family law attorney will be helpful in determining the best approach for resolving your matter based on the facts and circumstances of your case.
How does one begin the collaborative process?
The collaborative law process generally begins with one or both of the parties or attorneys suggesting collaborative law as a means of attempting to resolve all outstanding issues. Thereafter, assuming the parties and their attorneys agree to use collaborative law, a meeting is generally held and the parties and their attorneys sign a collaborative law agreement. The collaborative law agreement must be in writing, signed by the parties and their attorneys, state that the parties are electing to use collaborative law as a means to attempt to resolve their outstanding issues and set forth that the attorney for each party must withdraw in the event the collaborative law process does not result in a settlement. Mediation and/or binding arbitration may, however, be used as a part of the collaborative law procedure; the attorneys representing the parties in the collaborative matter may represent the client in such alternative dispute resolution means (such as mediation or binding arbitration) as are pursued as a part of the collaborative law agreement.
Can the court system help me if I am in an abusive relationship?
Yes. If you are in a violent relationship, you may be eligible to obtain a 50B Protective Order against an abuser if you and/or your children have suffered acts of domestic violence from an abuser with whom you have a personal relationship.
When can I file for equitable distribution?
You may file a claim for Equitable Distribution any time after separation, even before an action for divorce is filed. Equitable Distribution is a long process starting with the filing of the claim and concluding with the Court’s determination as to how the property should be distributed.
Do I have to go to mediation?
If you and your spouse are in an equitable distribution proceeding and another alternative dispute resolution option has not been mutually agreed upon, you must go to mediation prior to a judge hearing your equitable distribution case. Parties involved in a custody proceeding are required to attend mediation, either private mediation or through the court’s Child Custody and Visitation Mediation Program.
Can my attorney's fees be reimbursed by the opposing party in a child support case?
A party may request reimbursement of attorney’s fees and costs when seeking both the establishment of a child support obligation as well as the modification or termination of the child support. Depending on the circumstances involved in your case, the court may order the opposing party to reimburse your attorney’s fees and costs. However, the court is also authorized to order a party making a frivolous claim for support to reimburse the attorney’s fees of the other party.
Can a judge order supervised visitation or no visitation?
Yes. A judge can order supervised visitation. Typically, this happens in extreme circumstances that would include when there are allegations of physical, sexual, drug, or child abuse. A judge can also order that there is no visitation between a parent and a child but only under extreme circumstances where the judge believes that there is no possibility of rehabilitation and there is an ongoing danger to the child.
What is the effect of a 50B Domestic Violence Protective Order?
In its simplest form, a 50B is a means of protection for individuals who are victims of domestic violence. Most importantly, it provides a victim with a fast method of obtaining a civil temporary restraining order from his or her abuser. A 50B Protective Order requires that an abuser may not, at the very least, assault, threaten, or harass the victim and/or the victim’s children. It can also provide other types of relief, including granting a party possession of the residence, requiring a party to provide a spouse and his or her children suitable alternate housing, awarding temporary custody of children and establishing a “temporary safe visitation plan,” order either party to make child support or spousal support payments, or order the abuser to be evicted from the residence. The court has the authority to limit or expand the scope of its order as it sees fit.
What if my future spouse wants a premarital agreement and I do not?
Each party must feel comfortable with the terms of the premarital agreement and only sign it voluntarily. In situations where only one party is in favor of entering into a premarital agreement, it is important for both parties to discuss all issues and decide what will happen next. No one can make a party sign a premarital agreement. If you have questions about your rights in a premarital agreement, you should seek the assistance of an experienced family law attorney.
Are same-sex married couples allowed to file their taxes as a married couple?
Yes. You may file your taxes as “married filing jointly” or “married filing separately.” Please note, married people cannot file their taxes as “single.” The attorneys at Hatcher Law Group are not tax professionals and we recommend consulting an accountant or tax advisor to determine the best options for your situation.
Can one spouse terminate the collaborative law process?
Yes, one party may terminate the collaborative process. If the parties have signed a Collaborative Law Agreement providing for mediation or arbitration of the issues, the next step typically is to proceed with mediation or arbitration. In the event that a party desires to terminate the collaborative process and not proceed with mediation or arbitration (and desires to initiate a court proceeding), each party must then retain new counsel for litigation of any issues. As a result, few people elect to fully terminate or quit the collaborative process to proceed with litigation.
Can I receive a temporary order to protect my property?
Yes. After filing your claim for equitable distribution, you may choose to file a Motion for Interim Allocation of Assets or a Motion for Injunctive Relief to prevent wasteful spending, depletion or neglect of that property interest.
Can post-separation support, alimony, and attorney's fees be waived through terms included in separation agreements and premarital agreements?
Yes. If the parties have entered into a duly executed agreement whereby rights to spousal support and attorney’s fees have been waived, these agreements may be used as evidence barring any later claims.
How can I ensure that child support is paid to me in full and on time?
There is a presumption that the support payments shall be made through a wage-withholding order, if the child support obligation is memorialized in a court order. The wage-withholding order provides for the support amount to be taken directly from the wages of the person paying the support. In addition, child support payments are often paid through a centralized collection agency for the state. All payments which go to the agency are credited against the paying party’s account and then forwarded to the party entitled to receive the child support. If an arrearage of support accumulates, state law requires the agency to create a notice of delinquency and send it to the clerk of court in the county where the obligation arose. This notice of delinquency will be sent to the person who owes the support and may lead to a court generated action for contempt and enforcement of the order.
What is the benefit of mediation?
Mediation provides an opportunity to resolve legal issues without going to court. The parties have the ability to reach a resolution that they mutually decide. Successful mediations save parties time and money while providing them with control over the outcome of their case.
How is collaborative law different from negotiation?
Collaborative law is a much more civil means of resolving disputes. Negotiation simply is going back and forth with different proposals in hopes of achieving a resolution of the issues in dispute. Collaborative law is focused on interest based bargaining rather than position-based bargaining. Because parties typically have different interests, a win-win resolution is the goal to be achieved. With position based bargaining, positions are staked out and only by compromise can the matter be solved. In collaborative law, each party is focused on reaching a mutually acceptable agreement which takes into consideration the other side’s concerns and the
What is the maximum amount of time my 50B Order can last?
Any order entered pursuant to Chapter 50B will be in effect for a fixed period of time not to exceed one year. The court may renew a protective order for good cause upon a motion filed by the aggrieved party, so long as the motion filed before the expiration of the current order. The court may renew the protective order for an additional fixed period of time, not to exceed one year.
Can a parent refuse to allow visitation if child support is not paid?
The real issue is not whether a parent can refuse to allow visitation if child support is not paid, but rather, should a parent take this action. The law in North Carolina is very clear that visitation and child support are not connected. That is, simply because a parent does not pay the child support ordered, the custodial parent does not have the right to withhold the child. The appropriate steps to take by the parent who is not receiving child support are an action to enforce the child support order. By withholding the child, you will simply subject yourself to the ire of the court.
Can I use my maiden name after I divorce?
Yes. A wife may resume the use of her maiden name through an absolute divorce judgment. However, only the wife may ask for this relief. Conversely, the husband cannot request that his wife be forced to resume the use of her maiden name. A court will simply grant the wife the use of her maiden name but not compel her to use it. If the judgment of divorce is already entered, the wife will have to go through a name change in Special Proceedings Court.
If one spouse commits adultery, is he or she entitled to receive alimony?
It depends. If a dependent spouse commits adultery and that behavior is proven in a court of law, it may have an impact on the amount and/or duration of the alimony award, or it could mean an outright denial of an alimony award.
How are the costs of mediation divided?
Unless otherwise agreed, the mediator’s fees are usually divided equally between the parties at the conclusion of the mediation. If each party is represented by an attorney during the mediation, then each party will be responsible for the cost of his or her attorney as well. Parties can agree to offset these fees by agreement; that is, as part of a resolution, one party would agree to pay all of the mediator and attorney fees.
What is joint custody? What is sole custody?
There is no set definition in North Carolina as to joint custody or sole custody. Many people believe that joint custody represents a true sharing of time and expenses for their children. Sole custody is often thought of as a situation where one party has the primary physical and legal control over a child and the other party simply has visitation rights. The term is not as important as the schedule set out in the custody order.
How do I start my domestic violence case?
The North Carolina Court System has designed helpful instructions if you wish to obtain a Domestic Violence Protective Order. To access these instructions, click the link below:
Instructions for Domestic Violence Forms
My spouse has a biological child from his or her previous marriage. Am I now considered a parent of this child?
No. However, depending on the nature of your relationship with the child (and other circumstances), it is possible you could have standing to seek custody of the child in the event you and your spouse separate. Additionally, your marriage qualifies you to petition for a stepparent adoption if the other biological parent’s rights have been terminated, or if the other biological parent consents to the stepparent adoption. If a stepparent adoption is granted, the adoptive parent acquires the same legal status as a biological parent.
Do I have to file my separation agreement with the courts?
What is abandonment?
Abandonment is when one spouse, without reason or the consent of the other spouse, terminates cohabitation with no intent to renew it at a later time. Abandonment can come in the form of constructive or actual abandonment, with actual abandonment being that which is described in the previous sentence. Constructive abandonment can happen when a spouse creates a living situation where the parties cannot live like a married couple. For example, one spouse could make the marital home so unbearable that the other spouse has no choice but to leave, such as a case where there is domestic violence or a drug or alcohol addiction which renders the home unbearable. In this case, the innocent spouse who must flee the marital residence has been constructively abandoned by the offending spouse.
Is someone other than a biological parent responsible for paying child support?
Typically, only the biological parents are responsible for financially supporting their children. However, if a third party agrees in writing to support a child voluntarily, that could create a legal obligation for that third party to continue to provide support just as a biological parent.
How do I find a mediator?
Typically, when each party is represented by an attorney, the attorneys will discuss a neutral third party to serve as mediator in the case. Oftentimes, the mediator chosen has significant experience in mediating family law matters and/or has significant experience representing parties in family law matters. Experienced family law attorneys rely upon word of mouth and past involvement with the mediator in order to decide who would best serve as the mediator in the case. An unrepresented party may consider consulting various Internet directories and websites to locate a certified family law mediator.
What is an Ex Parte Order?
An ex parte order is an order given by the Judge when only one party is before the Judge. In a DV setting it is when the victim is before the judge without the presence of the abuser. This may be available if you and/or your children are in serious and immediate danger of bodily injury. After filing a complaint for a Domestic Violence Protective Order, you will typically have an emergency ex parte hearing (the abuser will not be present at this hearing) before a judge. If the judge finds that you have presented sufficient evidence that there is a danger of serious harm to you and/or your children, he or she will issue an emergency Ex Parte 50B Order which lasts for ten days. Upon the expiration of the 10 days, the court will set the matter for hearing, which is commonly referred to as the 10-day hearing.
When can child custody be filed for or decided? Once child custody is agreed upon or ordered can it be modified?
If there is no order or agreement by the parties resolving the issue of child custody, a child custody claim may be filed by any party at any time. Custody, by its very nature, is always modifiable by the courts. The courts have the inherent responsibility to protect the best interests of the children of this state. A party moving the court to modify a child custody determination has the burden of showing that since the entry of the last order, there has been a substantial and material change of circumstances affecting the best interests and welfare of the children.
If my spouse and I have divided our property, can I file an equitable distribution claim?
It depends. If you and your spouse have divided your property pursuant to a Separation and Property Settlement Agreement, you may not file a claim for equitable distribution because you already settled the property division through an out of court agreement. However, if you and your spouse have merely divided your property and have not entered into a Separation and Property Settlement Agreement, you are still entitled to file a claim for equitable distribution as long as it is filed prior to an absolute divorce being granted.
Do I have to live in North Carolina after my divorce complaint is filed? When can I relocate?
No. You do not have to live in North Carolina after your divorce complaint is filed. You may relocate at any time after the filing of your divorce complaint.
Is alimony taxed?
Typically, alimony is taxed as income to the recipient spouse and deductible to the payor spouse. It is recommended that you seek the advice of an attorney and/or a financial professional when structuring an alimony award because of the various tax consequences that may apply
What if my case is not resolved through mediation?
If the case is not resolved through mediation, it may still be possible for the case to be resolved through negotiation following the mediation, or through arbitration. Of course, litigation is always an option for the parties as well.
What are my options for modifying a child support obligation that was originally determined in an out of court agreement?
Many times, parties will set child support in an out of court agreement without memorializing the agreement terms into a court order. In cases such as this, a party cannot file a motion to modify since there is no court order to modify. Instead, the party would file a lawsuit asking the court to set child support for the first time. If child support is awarded, it will be in the form of a court order which is much easier and faster to enforce.
Can I get a temporary custody order? What is an ex parte order?
Mecklenburg County allows Motions for Temporary Parenting Arrangements which act as temporary custody orders in limited circumstances. It is a temporary order the parties must follow before a final custody ruling is made.
An ex parte motion is a motion made to the court without notifying the other party. Typically, one party seeks an ex parte order if there are emergency circumstances such a risk to the child’s physical, mental, emotional well-being or if the opposing party is planning to leave the state of North Carolina for the purpose of avoiding the jurisdiction.
What is the difference between custody and adoption?
Once an adoption is granted and the adoption decree is signed, a legally-recognized relationship of parent and child is established between the adoptee and the adoptive parent and the adoptee acquires the same legal status as a natural child of the adoptive parent. Adoption is only available to same-sex couples who are married.
Custody and/or visitation rights may be granted to parents and/or non-parents (including grandparents or other relatives of the child, or a third party who has a parent-child relationship with the child). Gaining custody of a child means that a court has recognized you as an appropriate person to be awarded physical and/or legal custody of a child. A non-parent who is awarded custody of a child does not automatically have all rights and privileges of a parent of the child. For example, a non-parent who is awarded custody of a child does not have the right to inherit from the child, nor does the child have the right to inherit from the custodian (absent a will with specific directions about what is to be passed to the child).
Do we have to have a reason to get divorced?
No. For an absolute divorce in North Carolina, no fault is required. You only have to meet the one year requirement. This means that neither party has to allege the other has committed a fault ground in order to obtain a divorce.
Is the division of property always fifty-fifty?
The division of property does not always occur on a 50/50 basis. Rather, after the court has considered all of the evidence and the equitable distribution factors, it will determine what the proper division should be. For example, at the conclusion of trial, you could find that the property is divided 60/40 in your favor, or it could be 55/45, etc. Please see the Property Distribution practice page for more information on the factors that are considered in the distribution of property.
What are possible defenses against actions of marital fault?
One possible defense against an action of marital misconduct is that the spouse did not perpetrate the marital misconduct. Another possible defense is that the marital misconduct occurred as a result of marital misconduct on the part of the accusing spouse.
What effect does bankruptcy have on a party's child support obligation?
Child support obligations cannot be discharged by filing bankruptcy. In addition, child support arrears are considered vested once they are past due and owed. Accordingly, the bankruptcy code will not allow any arrearages or ongoing obligation to be included in a bankruptcy filing. However, if a party goes through bankruptcy, he or she may file a motion in Family Court to modify the child support obligation and claim his or her financial circumstances require the obligation to be reduced or terminated. Ultimately, the court will determine if these circumstances warrant a modification.
What is the attorney's role in mediation?
During mediation, an attorney advises the client on settlement positions, and also advises the client as to reasonable offers and counteroffers to be made during mediation to potentially reach a resolution.
Is my 50B Order valid in other states?
Your 50B Order will be valid throughout North Carolina and the United States. Always keep a copy with you. If the order covers your children, be sure to give a copy to their school, daycare, etc. If you move to a new city, it is a good idea to provide a copy of the 50B Order to the local police department.
Do children get to decide who they will live with?
It is in the court’s sole discretion as to where a child will live and who will have custody over that child. The court must consider a number of factors. One of these factors may be the wishes of the child. However, the wishes of the child are not seen as a complete and absolute factor which is controlling upon the court.
What does the term “property” include?
The term property includes all assets and debts whether they are separate, marital, divisible or a hybrid mix.
I just moved to North Carolina three months ago and want to get a divorce. Can I?
Probably not. Either you or your spouse has to be a citizen and resident of North Carolina for at least six months before the lawsuit for divorce can be filed.
What is condonation?
Condonation is defined as forgiveness conditioned upon the promise that the offending spouse will not continue to commit the same behavior after the forgiveness. Condonation can be shown in a number of ways including words and actions. By simply saying, “I forgive you for your past behavior,” you may be alleged to have condoned that conduct. By having sexual intercourse with a spouse after you are aware that he or she has had sexual relations with another person, you may be alleged to have condoned that behavior. If a behavior is condoned, the condoning spouse cannot bring up those allegations again at a future proceeding because they have already been considered forgiven.
How do I find an arbitrator?
Typically, when each party is represented by an attorney, the attorneys agree on a person to serve as arbitrator in the case. Oftentimes, the arbitrator chosen has had significant experience in arbitrating family law matters or is a former district court judge.
What if I am unsatisfied with a court’s ruling on child support?
If a party is unhappy with the ruling in a child support hearing, he or she has the options of requesting a new trial, requesting the court set aside the order which has been entered, or seeking an appeal.
Do the North Carolina Courts favor one parent over the other?
In North Carolina, there is no preference for mother or father in custody determinations. The court looks at the best interest of the child standard in its initial determination of custody.
Are there criminal charges my abuser can be charged with?
Yes, a victim of domestic violence can also bring criminal charges separate and apart from the 50B DVPO against his or her attacker. If you have been attacked or abused, do not hesitate to call the police to report his or her behavior. Typically, if the police are called and there is physical evidence of abuse (i.e. blood or bruising) the police are required to make an arrest, absent a waiver by the victim.
If my spouse and I lived in separate bedrooms for one year prior to making a claim for a divorce, would we qualify for the one year separation?
No. The parties cannot reside in the same residence during the separation period in order for the separation to qualify for the divorce.
Can qualified plans, such as pension plans, profit-sharing plans, and 401(k) plans be divided?
Yes. Pension plans, retirement plans, 401(k) plans and profit sharing plans may be divided pursuant to the Court’s Equitable Distribution determination. Specifically, the court will order that a Qualified Domestic Relations Order (QDRO) be drafted which will direct the plan administrator for a pension or retirement account to distribute a certain portion of the account to the non-employee spouse.
What impact could dating have on post-separation support and alimony?
Illicit sexual behavior is a marital misconduct ground under our post-separation support and alimony statute, which may be considered by the court both in awarding spousal support and making a determination of the amount and duration of the payments. However, the illicit sexual behavior must have occurred prior to or on the date of separation of the parties to be considered. If the dating took place prior to or on the date of separation, and it involved illicit sexual behavior, the court can consider it as a factor in determining spousal support. If the dating takes place only after the date of separation, the court may consider these post-separation acts as corroborative evidence of allegations of illicit sexual behavior before or on the date of separation. Simply put, if you enter into a dating relationship very quickly after the date of separation, you run the risk that your former spouse will believe you were in a relationship with this person before you separated. It is suggested that clients refrain from dating until all their divorce-related claims, including spousal support and child custody, are resolved.
How long will I have to pay child support?
In general, payments for child support terminate when a child reaches the age of 18. However, there are exceptions to this rule. The following exceptions apply:
o The minor child becomes emancipated;
o The minor child dies;
o If the minor child is still in primary or secondary school when he reaches age 18, support payments shall continue until the child graduates, otherwise ceases to attend school on a regular basis, fails to make satisfactory academic progress towards graduation, or reaches age 20, whichever comes first;
o The parent responsible for paying child support dies; or
o The custody of the minor child is changed to the party who was paying the support obligation.
Although the above conditions allow for a court to terminate the support obligation, an order directing payment of child support remains in place until the court actually enters another order terminating the child support obligation. Therefore, the paying party cannot simply stop paying child support. Rather, he or she should file a motion requesting the court terminate the child support obligation and cite the appropriate reason for the termination.
What is an attorney's role in arbitration?
The attorney’s role in arbitration is much like an attorney’s role in litigation. He or she will represent the client’s interests and set forth the client’s case before the arbitrator in a clear and persuasive manner. An attorney may call witnesses, produce exhibits, cross-examine witnesses, etc., much like a court proceeding. However, an arbitration proceeding is typically less formal and more expeditious than a court proceeding. The parties must pay the arbitrator for his or her services.
Who can I turn to for help if I am being abused?
Resources are available if you or someone you know is in an abusive relationship. The following agencies provide resources and assistance for victims of domestic violence, abuse and trauma. Information about additional services can also be found by visiting the Other Information Sources page found under our FAQs & Resources menu.
•Clyde and Ethel Dickson Domestic Violence Shelter
•Charlotte Victim Assistance Court Services (a service of Safe Alliance)
•Mecklenburg County Women’s Commission
Can a parent's rights to custody be given to other relatives or other people?
In North Carolina, we have something called the Fourteenth Amendment Right, or the “Peterson Presumption.” Simply put, a parent has a Fourteenth Amendment right to care for and nurture his or her child. Furthermore, in North Carolina, as in a majority of the other states, this principle gives rise to a presumption that, in a dispute between a parent and non-parent, the parent prevails. In fact, the North Carolina Supreme Court has specifically held that, in a custody dispute between a parent and a non-parent, the parent must prevail unless the judge finds that the parent is unfit, has neglected the child, or engaged in conduct inconsistent with the parental status.
What is the dual classification of property as partly marital and partly separate?
When you refer to partly marital and partly separate property, you are recognizing the fact that there is a marital interest in the property at issue and a separate property interest. For example, if you come into a marriage with a vehicle that is only partially paid for, you would certainly have a separate property interest in that vehicle. However, as you move into the marriage and payments are made towards that vehicle using marital earnings, a marital property interest will be created as well. If property can be classified as marital in any manner, then both parties have a claim to it. If it is designated at the separate property also of a party, then that party has a separate interest alone from the other spouse. As a result, one spouse may have a completely separate interest in addition to a marital interest in the property.
Is common law marriage recognized in North Carolina?
Who decides if alimony will be awarded, a judge or jury?
If your case is not settled out of court via an out of court agreement or through a consent order, then your claim for alimony will be decided by a judge. However, a jury may be empanelled to hear only the issue of marital misconduct and make a decision as to whether it was committed by either of the spouses. The judge will then take into consideration the jury’s decision when making his or her final determination of alimony. The judge ultimately determines if alimony is to be paid, how much is to be paid, and for how long.
Is an arbitrated decision binding?
Parties can agree on binding or non-binding arbitration. In binding arbitration, the arbitrator’s decision is binding. In non-binding arbitration, the arbitrator’s decision is, at a minimum, a strong suggestion as to the means of resolving the issue and a forecast of how the issue may be decided if a resolution cannot be agreed upon by the parties. Most parties agree to binding arbitration due to the cost of the proceeding and fear there will be no final resolution if it is non-binding.
Can I stop paying child support if my ex will not allow me to see our child?
No, it is important to continue making child support payments in full and on time even if the other parent prevents you from seeing your child. Child support is an entirely separate issue from child custody and visitation.
What rights do grandparents have to custody and visitation in North Carolina?
Grandparents generally have standing to sue for custody of their grandchildren if they allege parental unfitness or child neglect, even if there is no ongoing custody dispute.
However, even though grandparents may have standing to seek custody, they may not have standing to seek visitation under analogous circumstances unless there is an ongoing custody dispute. Under current North Carolina law, grandparents may be granted visitation rights, but they must carry the burden of proving that such visitation would be in the child’s best interests.
My spouse and I tried to get back together for a while. Does this mean our one year separation period starts over for the purposes of getting a divorce?
The divorce statute specifically states that, “Isolated incidents of sexual intercourse between the parties shall not toll the statutory period required for divorce predicated on separation of one year.” A married couple has resumed marital relations during the period of separation if there is a voluntary renewal of the spousal relationship, as shown by the totality of the circumstances. In applying this standard, our courts have looked at the actions of the couple in holding themselves out as married spouses as well as the intent of the parties. In the end, if a married person wants to satisfy this requirement of the law in order to obtain a divorce, he or she should dwell separate and apart from his or her spouse for the entire one year separation period and avoid any conduct which is indicative of marriage.
What is the identification of property in the equitable distribution process?
The identification of property entails identifying the property, including assets and debts, which were in existence as of the date of separation.
What is the valuation of property?
The valuation of property entails calculating the net value of any particular property interest. Courts typically look at the fair market value of a piece of property and subtract from it all monies owed on a piece of property to arrive at a net value. This valuation can be determined in a number of ways, including by appraisal or even opinion of the parties involved.
My spouse and I no longer live in the same residence. Are we legally separated?
No. You are not legally separated. You are, however, physically separated for the purpose of the necessary one year passing prior to filing a divorce complaint. For more information, please see our Separation & Divorce practice area page.
Can I change my minor child's last name without permission from the other parent?
Unless the other parent has terminated his or her parental rights, you cannot change a minor child’s last name without the other parent’s consent.
What is a dependent spouse? What is a supporting spouse?
To be entitled to receive post-separation support or alimony, one spouse must prove that he or she is financially dependent upon the other spouse. A court determines who the dependent spouse is and who the supporting spouse is by reviewing the respective parties’ incomes and monthly expenses. The court will typically make a determination that there is a dependent spouse when one spouse has earned significantly more income than the other spouse over the course of the marriage and the dependent spouse’s presentation of evidence reflects a deficit in terms of the amount he or she earned per month when viewed against his or her monthly expenses. Once it is demonstrated there is a dependent spouse and a supporting spouse, the court will determine if the supporting spouse has the ability to pay. The court will then decide the amount and the duration of post-separation support or alimony based on a number of factors, including marital misconduct, duration of the marriage, and the physical and mental conditions of the spouses.
Are child support payments tax deductible?
Which parent is allowed to claim a child as a dependent for tax exemption purposes?
The North Carolina Child Support Guidelines presume that the parent who receives child support is entitled to and does claim the children for all tax exemption purposes.
Can alimony or spousal support be eliminated in a premarital agreement?
Yes, so long as such elimination does not cause one of the parties to be eligible for public assistance at the time of the separation or marital dissolution. If the elimination of alimony causes the dependent spouse to be eligible for public assistance, then the court, notwithstanding the provisions of the premarital agreement, may order the payment of spousal support to the extent necessary to avoid that eligibility. A waiver of alimony in a premarital agreement must be explicit. Before signing such an agreement, you should speak with an experienced family law attorney.
How will I present evidence if we go to court for custody?
Often, in a custody action, each party must show the court evidence that would assist a judge in making a determination as to the best interests of the child. Sometimes this evidence comes only through testimony of parents, family, and friends that are close to the children. Testimony from teachers, counselors, coaches, or religious figures that have been important in the child’s life may also be presented as evidence. Please consult a qualified family law attorney with specific questions for your case.
What are the legal consequences of a divorce judgment?
There are many consequences of an absolute divorce besides the obvious right to marry someone else. At the time the divorce judgment is entered, if the parties have not preserved their rights to spousal support and property distribution through a pending claim before a court, or resolved these claims by written agreement or court order, then all claims for spousal support are barred and property is distributed to the party with title. It is important to note that the entry of an absolute divorce judgment will not affect either party’s rights to child custody or child support. Another consequence of the divorce is that all estate claims are voided. That is, your rights to inherit from your spouse, simply because you are married to him or her, are terminated.
What is divisible property?
Divisible property is the passive gains and/or losses on marital property. It can also be used to describe property received after the date of separation but was earned from efforts before the date of separation.
What effect does reconciliation have on equitable distribution?
If you and your spouse have entered into a Separation and Property Settlement Agreement which provides that the distributions remain in effect regardless of whether you have reconciled, your reconciliation will have no effect at all. However, if you do not make sure that your out of court agreement has the necessary terms; your reconciliation may undo all of the property distribution which you have negotiated and your property is considered marital property again. In a situation where you and your spouse have gone to court and a judge entered an order distributing your property, your reconciliation should have little to no effect on the distribution. However, any property which you two acquire together after you have reconciled will be marital property and can be subject to equitable distribution if you separate again.
What if I do not want a divorce but my spouse does?
Simply put, your spouse will be able to obtain a divorce if he or she has met the statutory requirements for filing and follows the process set forth in both the state and local rules.
Will my child have to testify in court?
In North Carolina, it is entirely in the judge’s discretion as to whether the testimony of a child will be heard. If a judge determines that a child is of appropriate age and maturity to provide the court with helpful information, the court may order the child to testify. However, the judge has the ability to require the testimony to be in private in his or her chambers (an in camera examination) or the judge may require the attorneys for the parties to be present during the questioning as well.
Can family law issues related to children be resolved in a premarital agreement?
No. Child related issues, whether child custody, visitation or child support, cannot be resolved in a premarital agreement.
Can you determine through a premarital agreement how all property will be divided in the event of separation?
Yes. A premarital agreement can set forth how all property acquired in the future will be divided in the event of separation, divorce, death or the occurrence/nonoccurrence of some other event.
If I have custody, will I receive child support payments?
Not necessarily. Only a person with custody of a minor child has a right to seek child support but the person with custody must take affirmative action to seek child support from the responsible parents.
What is marital fault and does it play a role in divorces in North Carolina?
The only time marital fault is considered in a divorce action is when a party makes a claim for a divorce from bed and board. In this type of claim, fault grounds could be any of the following: abandonment, maliciously turning the other out of doors, cruel and barbarous treatment endangering the life of the other, offering indignities to the person of the other spouse so as to render his or her life condition intolerable and life burdensome, excessive use of alcohol or drugs, or adultery.
Can alimony and child support affect the distribution of property?
Yes. Prior child support obligations or alimony obligations could be taken into consideration as an Equitable Distribution factor.
Can I recover attorney’s fees with equitable distribution?
In general, you are not typically entitled to recover attorney’s fees relating to your claim for equitable distribution. However, in certain limited circumstances, you may be able to recover attorney’s fees if the court, in its sound direction, makes a determination that the opposing party has operated in bad faith or has not provided you with timely responses to your discovery requests.
When can I get married again?
You may remarry as soon as your divorce judgment has been entered by a court of law and you have met all the requirements for being married in the State of North Carolina.
If both parents share custody, does anyone pay child support?
Both parents have a duty to financially support their children. Child support is based on a guideline amount provided by North Carolina’s statutes. It is based on the parties’ gross incomes and their contributions for health insurance, day care costs, and any extraordinary expenses paid for by either parent for the benefit of the minor child.
What is the difference between a separation agreement/contract and a court order?
A contract is a private agreement made between two or more parties which is not approved of or signed by a judge. Just as a private agreement is negotiated by and agreed upon by the parties, a consent order reflects agreed upon terms by the parties. However, a consent order requires the agreement and signature of a judge to be valid and enforceable. A court order not entered by consent of the parties is a mandate entered by a judge at the conclusion of a trial or hearing. All orders are enforceable and potentially modifiable by the court system.
A contract is non-modifiable. Contracts and court orders also have very different methods of enforcement. If someone does not comply with a contract, then the aggrieved party’s recourse is to file a lawsuit for breach of contract (a request to be compensated with monetary damages as a result of the other party’s non-compliance with the contract) and/or specific performance (a request that the judge order the other person to comply with the contract). If someone violates a court order, the aggrieved party’s recourse is to file a motion for contempt and have a judge determine whether the party violated the order willfully and intentionally without a valid excuse.
How do I enforce a separation agreement if my ex-spouse is not complying?
Separation agreements (which are contracts) may be enforced by filing a lawsuit for breach of contract and/or specific performance.
How does death affect an unresolved equitable distribution claim?
The equitable distribution claim will survive and the living relatives can be substituted in the place of a deceased spouse.
What impact could my dating have on child custody?
There could be several ramifications of dating when you are involved in a child custody case. First, the court may determine that your new boyfriend or girlfriend is not a good influence on the children and should not be allowed around them. Second, many custody battles are fought because of jealousy and feelings of parental inadequacies. By being involved in a dating relationship, you may be adding fuel to the fire which could prolong your child custody matter. Your spouse may have no actual objections to the custody relationship that you seek, but he or she may be blinded by anger with you over dating another person so quickly after your separation. Finally, a court may prevent your dating partner from spending the night around the children until they obtain a certain age or your relationship has been of a certain duration. Our courts are not in the habit of making moralistic rulings but they might not believe it is in the best interests of the children, from any standpoint, to witness your romantic relationship with another person. Last, but not least, dating another person may be particularly confusing to your minor children.
Are separation agreements modifiable?
No, contracts are not subject to modification by courts.
What is a custody evaluation and when should one be conducted?
A custody evaluation is a third party assessment of each parent in order to assist the court in making a custody determination. Either party may ask the court to have a custody evaluation performed. As a matter of logistics, it is preferable to have a custody evaluation requested early on in the legal process so as not to cause unnecessary delay. Custody evaluations may take anywhere from a week to a month or possibly longer, depending on how in-depth the evaluation is. In addition, the evaluation may involve interviews with the parties as well as collateral witnesses and psychological testing of both parents and the children.
What is the role of a custody evaluator?
A custody evaluator is an objective third party who is paid to review the pleadings in a custody case, interview the parties and the children involved, conduct psychological testing, review records, and then write a report for the court to take into consideration when making its ruling. The custody evaluator’s report does not dictate the court’s ultimate decision. However, because the process which leads to the generation of the report is so involved, the court usually pays great deference to the evaluator’s opinion.
Should I include terms for child custody and child support in a separation agreement?
Each situation is different and many parents choose to resolve custody and child support issues via private contracts. At Hatcher Law Group, we believe the most prudent decision is not to resolve these matters outside the court system. As such, in most cases, no, terms for child custody and child support should not be settled in a separation agreement (i.e., a contract), and should instead be formalized in a consent order. Custody and child support are subject to modification by the courts so long as at least one child is under 18. If you need to modify your custody and/or child support terms because of a change in circumstances, you would proceed with a motion to modify only if your agreed upon terms are set forth in a court order. However, if your custody and/or child support terms are formalized in a separation agreement (i.e., a contract), contracts are not modifiable, so you would be forced to file a lawsuit. Additionally, if someone is not complying with a contract regarding custody and/or child support, contempt is a much quicker and easier remedy (if the terms are formalized in a consent order) than filing a lawsuit for breach of contract and specific performance (which is the enforcement mechanism available for contracts). Before agreeing to terms and conditions related to child custody and/or child support, it is important to discuss these issues with a qualified family law attorney.
Should my settlement be formalized in a separation agreement (i.e., contract) or in a court order?
This really depends on what issues have been settled. Because contracts are not modifiable and are very difficult to set aside or get out of, it may be more appealing to include terms for alimony and equitable distribution in a contract. Because court orders are subject to modification and are easily enforced, we commonly see child custody and child support terms formalized in a consent order. What makes sense for your situation depends on the particular facts and circumstances of your case and you should discuss this with a qualified family law attorney.
How is it determined which state has jurisdiction over custody matters?
Generally, a state will have jurisdiction over custody matters if the minor child has lived with a parent or a person acting as a parent in that state for six consecutive months prior to the initiation of a custody action. If the minor child is less than six months old, the home state will be the state where the minor child has lived since birth. In the exceptional case where the child is over the age of six months and has not lived in one state for six consecutive months, jurisdiction will be determined on a case by case basis with an emphasis on which state has the most significant connections with the minor child.
What is the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)?
The UCCJEA was instituted in 1999 to promote the avoidance of jurisdictional competition between states in custody matters, to ensure that litigation over custody will occur in the state where the parties and the minor child have the most significant connection, and to facilitate the enforcement of one state’s custody decree in another state. The UCCJEA sets forth that, if there is a home state of the minor child, then that state alone has the power to enter an initial custody order. Furthermore, the home state retains its status as the state having continuing, exclusive jurisdiction to modify the custody order unless there is an emergency or it is determined that the minor child now has a new home state.
What is the Parental Kidnapping Prevention Act (PKPA)?
Like the UCCJEA, the PKPA was developed to address the problem of parents kidnapping their children and going to a neighboring state in order to have a custody order entered in their favor. The PKPA is designed to establish national standards for the determination of which state should have jurisdiction to resolve custody disputes. Although the PKPA’s standards are very similar to those found in the UCCJEA, the PKPA will override the UCCJEA if they are in conflict.