Family Law

Types of Cases We Handle

Column

• Divorce
• Child Custody
• Child Support

• Equitable Distribution

Column

• Alimony

• Adoption
• Domestic Violence

Column

• Premarital Agreements
• Separation Agreements
• Military Divorce

Family Law Overview

Suzanne P. Shankar

CHILD CUSTODY

In North Carolina, Child Custody is divided into two types of custody: legal custody and physical custody. Legal custody generally refers to information sharing among parents as well as decision making. Physical custody refers to the time spent by each parent with the child. Most cases involve parents who are granted joint legal custody with one parent having primary physical custody and the other parent having secondary physical custody, in which a visitation schedule is outlined by the Court. Courts award custody according to what is in the “best interests” of the minor child/children. Temporary Custody trials proceed by affidavits only and permanent custody trials proceed by testimony. Courts look to see which parent will best promote the child’s well-being; including, but not limited to the child’s mental health physical health, spiritual well-being and the like. Custody can either be agreed to by the parties in writing in what is sometimes labeled a “Parenting Agreement” or a “Separation Agreement” when the parties are married and are separating. In the event the parties are not in agreement as to custody, a parent must file for child custody with the district court. If no agreement has been entered or order entered, it is assumed that both parents have equal rights to the child/children.

CHILD SUPPORT

Child Support is calculated by the North Carolina Child Support Guidelines. The guidelines take into account each parent’s gross income, child care expenses, health insurance expenses and extraordinary expenses when calculating the amount owed by the non-custodial parent to the custodial parent. The custodial parent can seek child support by initiating a case through North Carolina Child Support Enforcement, by filing their own complaint for child support or by hiring an attorney to file a complaint for child support. You do not have to have a child custody order in place in order to see child support, but it can be helpful. Child Support can also be paid voluntarily by the non-custodial parent, but this could present enforcement issues in the event of non-payment or late payments. By statute, child support terminates when the minor child becomes emancipated. Terminating events are defined as when the child turns eighteen (18) or graduates from high school, whichever occurs last, but in no event past the age of twenty (20).

EQUITABLE DISTRIBUTION

Equitable Distribution is an action filed with the court asking the court to divide your marital property. It is assumed that an equal (50/50) division of your marital property (assets and debts) is fair and equitable. You must argue factors set out by statute if you want an unequal division of the marital property. Marital property is defined as any asset acquired from the date of marriage until the date of the parties’ separation, excluding those items that were received by gift or by will solely to one spouse. Marital debts are accrued during the marriage and must have been for a marital purpose. Take notice that it does not matter or not an asset or liability is titled in one party’s name or the other, what matters is the time in which the asset or liability was acquired. When filing for equitable distribution, it is wise to keep an inventory of all assets and debts that existed on the date of separation. You will also need to keep track of the balances owed or the fair market value of these items as they existed on the date of separation. A court may order that certain real estate or personal property be appraised to determine the fair market value at the time of separation. One must file for equitable distribution prior to the entry of a divorce judgment.

ALIMONY

Alimony, also referred to as post separation support, is a claim filed by the dependent spouse against the supporting spouse for some form of support after the parties separate. Spousal support can be in the form of payments made directly to the dependent spouse or payments made to a third party on behalf of the dependent spouse (example: mortgage payment made to lender for the home to which dependent spouse resides.) Alimony is determined at the discretion of the district court judge presiding over your case. The judge considers a number of factors in deciding the amount and duration of an alimony award. Alimony terminates, by statutes, upon the cohabitation of the dependent spouse, death of either spouse, or the date specified by the judge. It is important to note that marital misconduct can be considered in the alimony award. Adultery is a form of marital misconduct, that if proven can either prevent the dependent spouse from receiving alimony or guarantee alimony from the supporting spouse. Financial affidavits are generally required in hearings for post separation support and alimony. One must file alimony prior to the entry of a divorce judgment.

SEPARATION AGREEMENT

Separation Agreements are contracts between a husband and wife that resolve issues such as property division, spousal support, child custody, and child support. They can be entered before, during or after the marriage of the parties. The benefit of separation agreements is that they are a means of settling all issues outside of court proceedings. If you choose to convert the separation agreement into a court order, you may do this by incorporating the separation agreement into the terms of your divorce judgment. Separation Agreements must be signed by both parties and notarized by a certifying officer to be valid. If a spouse does not obey the terms of a separation agreement, one would have to file for “breach of separation agreement” in court. A separation agreement between spouses does not mean that you are divorced. To be divorced in North Carolina spouses must be separated for one year prior to filing for divorce. Spouses are “separated” when they are physically no longer in the same home and at lease one spouse has the intent to end the marriage.