Divorce & Family Law FAQ’s

  1.  What is an absolute divorce?
  • An absolute divorce in North Carolina is also known as an uncontested divorce or “no-fault” divorce.  The bonds of matrimony can be dissolved upon the application of either party after Husband and Wife have been legally separated for a period of one (1) year.

 

  1.  What is the residency requirement for North Carolina to file a divorce? 
  • In most cases, one party must reside in the state of North Carolina for at least 6 months before you can file for divorce in North Carolina.

 

  1.  My spouse is not abiding by the Court Order what do I do?
  • The mechanism by which a Court Order is enforced is done through Contempt procedures in which the court will assess whether the party violated the court order and then will enter sanctions, fines, imprisonment, attorney’s fees, etc. depending upon the Judges findings and determinations.

 

  1.  My spouse and I signed a separation agreement and my spouse is not abiding by the agreement what do I do?
    A separation agreement that has not become incorporated into a court decree is a contract and is enforced the same as any other contract: breach of contract and recovery of monetary damages.  The party can also pursue the equitable remedy of specific performance.  However, if the agreement is not a court order it is not enforceable by contempt.

 

  1.  I found out my spouse is cheating on me, I want a divorce! 
  • If you determine that your spouse has committed marital misconduct, you are entitled to seek a fault based divorce.  Additionally, North Carolina is one of the few states in which you can sue the paramour for breaking up your marriage under the torts of alienation of affection and criminal conversation (there are only approximately 7 states that permit these types of lawsuits).

 

  1. What is alienation of affection?
    • This is a tort that seeks to compensate the spouse for the loss of consortium of the alienated spouse.  The general requirements a Plaintiff must prove to succeed are:  (1) that there was a marriage with genuine love and affection between the spouses, (2) that the love and affection was alienated and destroyed, and (3) that the Defendant with malice caused the loss of the love and affection between Husband and Wife.

 

  1. What is criminal conversation?
    • Criminal conversation is a strict-liability tort.  This means that if your spouse has engaged in an adulterous relationship with a third party they are guilty of criminal conversation and civil damages are available.   There is only one element to prove for criminal conversation: Defendant (third party) and Plaintiff’s spouse engaged in sexual relations without the Plaintiff’s consent.  Plaintiff will prevail even if the Defendant argues that they did not know the person was married.  Defendant’s lack of knowledge that the spouse was married is not a valid defense.

 

  1. What is the proper way to calculate Post Separation Support?
    • Unlike child support which has guidelines and established amounts based upon the parties total monthly income, there is no set formula or guidelines for post separation support and alimony.
    • Under North Carolina General Statutes § 50-16.2A the court looks at the following:
      “In ordering post separation support, the court shall base its award on the financial needs of the parties, considering the parties accustomed standard of living, the present employment income and other recurring earnings of each party from any source, their income-earning abilities, the separate and marital debt service obligations, those expenses are reasonably necessary to support each of the parties, and each party’s respective legal obligations to support any other persons.”
  2.  Alimony
    • Just like post separation support there is no magic formula to calculate the amount of alimony.  It is up to the court to make that determination after considering the statutory factors and applying them on a case-by-case basis.
    • Under North Carolina General Statutes § 50-16.3A there is a list of sixteen (16) factors that the court looks at in determining and calculating an alimony award some of the factors include:
      • i. The marital misconduct of either of the spouses
        ii. Relative earning capacities of the spouses
        iii. The ages and the physical, mental, and emotional conditions of the spouses
        iv. The duration of the marriage
        v. The contribution by one spouse to the education, training, or increased earning power of the other spouse
        vi. The standard of living the spouses are accustomed to and established during the marriage
        vii. The property brought to the marriage by either spouse
        viii. The contribution of a spouse as homemaker
        ix. “catch-all provision” Any other factor relating to the economic circumstances of the parties that the court finds to be just and proper
  3.  Property Distribution/Equitable Distribution of the Marital Estate
  4. Agreements (Prenuptial, Separation and Property Settlement)
    • A large percentage of divorce cases eventually settle some if not all issues.
    • A separation agreement is a contract that is drawn up when Husband and Wife seek to separate from one other.  Such agreement allows the parties to live separate and apart.  It also can cover such additional issues as: child custody and visitation, child support, property division, alimony and post separation support terms
  5. Domestic Violence
    • If you are currently in a relationship or if you were in a prior relationship with someone who commits acts of violence or threatens you with acts of violence towards you or a family member you may file an action for a Domestic Violence Protective Order (DVPO).  A Domestic Violence Protective Order is a civil action, the abuser will not have a criminal record, unless you also press criminal charges with the state.  However, once a protective order is in place an individual can be arrested for violations of the order.
    • The individual or Plaintiff will file papers indicating the nature of the violence or threats.  The papers will be presented to a Judge and if the court finds that it satisfies the burden of domestic violence the Judge will enter an ex parte order (ex parte means only one side was present).  The Sherriff will deliver and serve a copy of the ex parte order on the Defendant and may remove firearms from the Defendant’s residence.  If Plaintiff and Defendant live together, the Court may order the Defendant to stay away from the residence.  Typically if children are involved the court will give the party temporary custody of the children until there is a full hearing to protect the children.  The Judge will set a return court date, typically within ten (10) days for a full hearing on whether there was an act of domestic violence that necessitates a protective order restraining the Defendant from committing future acts of domestic violence.  A protective order is typically in place for a period of one (1) year and could include such provisions as: removing the Defendant from the residence, requiring Defendant to turn over and not purchase any future firearms, prohibiting contact between the parties, ordering Defendant to attend an anger management program or abuser treatment program.    If children are involved the court may order only limited contact with the children, such as supervised visits or may suspend all visits between parent and children for a period of time until the court believes it is in the children’s best interest to resume visitation or custody.Contact our office today to set up your confidential consultation and to learn more about your rights and options!Contact Us Today! (252) 565-8562