Family law consists of several different matters including divorce, child custody, child support, alimony, equitable distribution, and property division. While family law issues are commonly decided in the courtroom, they can also be resolved outside court with various domestic agreements between spouses or at mediation. A litigant who is unsuccessful in court can also appeal his or her case to the North Carolina appellate courts to seek a more favorable decision. The knowledgeable family law attorneys at Patrick, Harper & Dixon, LLP are ready to assist you with these and related matters.
Understanding Absolute Divorce
In North Carolina, the official end of a marriage is called absolute divorce. Spouses are eligible to file for an absolute divorce once they have been separated for at least one year. Separation requires that the spouses live separately and apart during that year and that at least one of them intends for the separation to be permanent. While it’s a good idea for you and your spouse to sign a separation agreement (more on this below), it is not a requirement of separation.
Sometimes, absolute divorce is confused with divorce from bed and board. Despite the name, a divorce from bed and board is not a divorce and does not terminate the marriage. It is court-ordered separation and is used in certain circumstances to begin the one-year separation period required to file for an absolute divorce.
To obtain a divorce in North Carolina, at least one spouse must reside in North Carolina and must have lived here for at least six months prior to filing for divorce.
The Other Most Common Family Law Issues
There is much more to family law and divorce than just the end of the marriage. Our family law attorneys also address issues such as child custody and visitation, child support, alimony, and equitable distribution.
Child custody and visitation. Whether you and the other parent are married or not, you will have to make arrangements for child custody if you separate. Custody consists of legal custody (decision-making authority concerning major issues affecting the child, such as religious upbringing and health care) and physical custody (with which parent the child resides). Along with custody, the court will decide a visitation schedule for the other parent.
In North Carolina, judges make custody and visitation decisions based on the best interests of the child. What that means varies from one case to another, but courts consider numerous factors affecting the child’s well-being.
Child support. Both parents have an obligation to financially support their children. North Carolina judges use a set of child support guidelines to help them calculate a monthly amount for one parent to pay the other. The judge will order the calculated amount unless it wouldn’t meet or would exceed the child’s needs. Failure to pay child support can result in serious legal consequences for the non-paying parent. However, the other parent cannot condition visitation on payment of child support.
Alimony. Alimony is financial support paid from one spouse to another. It is available only to married couples who are divorcing. To award alimony, the court must determine that one spouse is “dependent” (in need of support) and the other is “supporting” (able to pay support). There are no strict guidelines or calculators for determining how much or how long alimony must be paid. Instead, the courts consider a number of statutory factors. Alimony will terminate under certain specific circumstances, such as the remarriage or cohabitation of the dependent spouse with a new romantic partner.
Equitable distribution. This is the process by which property and debts are divided between the divorcing spouses. Equitable means “fair,” not necessarily equal. Similar to alimony, the court uses a set of statutory factors to decide how to fairly split assets and debts. Any marital property (acquired after the date of marriage and before the state of separation) is subject to equitable distribution. Divisible property, which is acquired between separation and divorce, may be divided depending on the circumstances.
Separate property, which is acquired before marriage or is in a special category like an inheritance, is not subject to division. However, a spouse can inadvertently convert part of what would otherwise be separate property into marital property, for example by depositing inheritance money into a joint account and allowing the other spouse to use it.
Other Family Law Matters
In addition to divorce, property division, and custody matters, our firm also assists clients with:
- Adoption
- Contempt of court
- High net worth divorces
- Paternity issues
- Domestic violence
- Name changes
- Grandparents’ rights
- Modification of prior court orders
Out-Of-Court Options For Family Cases
Many of the issues involved in family law cases can be addressed out of court. Two of the most common methods for doing so are domestic agreements and mediation.
Domestic agreements. Spouses and parents can enter into a number of different family law agreements to resolve most issues without litigation. These are just a few examples:
- Child support agreement – Parents can voluntarily agree to an amount of child support. The court will still have to review and approve the agreement to make it legally enforceable.
- Separation agreement – Spouses can resolve child support, child custody, alimony, equitable distribution, and numerous other issues. The agreement can be signed during or immediately before separation.
- Prenuptial agreement – Spouses can sign a prenuptial agreement before they get married to decide how assets will be divided if they later divorce. The agreement can also address rights and obligations between the spouses during their marriage.
- Postnuptial agreement – This is essentially the same thing as a prenuptial agreement, but the spouses sign it after they marry.
These and other agreements have specific legal formalities that must be followed to make the agreements valid and enforceable. There are also some limitations on what can be agreed to in such agreements. For example, parents cannot agree to waive child support in a separation agreement, as this would violate North Carolina public policy.
Mediation. Mediation is a process by which a neutral third party, known as a mediator, attempts to help the parties resolve their family law dispute. The mediator does not make a decision for the parties and has no stake in the outcome. In many cases, such as child custody, mediation is required. But the process is also beneficial for other domestic issues, as it can save significant time and money.
Some types of mediation, such as those that are conducted through court programs to resolve custody, are done without attorneys present. Attorneys can, however, represent parties in private mediation, and our firm does so.
Family Law Appeals
A party may believe that the trial court judge made an error in deciding their case. Although disagreement with the judge’s decision is not enough to appeal, there are circumstances in which a higher court can review the order you received. For example, the judge may have incorrectly applied the law or improperly excluded certain evidence from consideration.
Appellate courts have strict rules and timelines for appealing trial court decisions. A dissatisfied party only has 30 days after the judge issues an order to file a Notice of Appeal. If you believe the family court judge made an error in your case, you should speak with us about a possible appeal right away.
Contact Our Hickory Family Law Attorney
At Patrick, Harper & Dixon, we understand the emotional, financial, and legal challenges of divorce and family law. That’s why we advocate for our clients and their families each step of the way. If you have a North Carolina family law case, contact us to find out how we can serve you.
