Family Law

How do I obtain a divorce?
While obtaining a divorce is not a complex process in North Carolina, you must meet the following requirements and follow these steps:

• You and/or your spouse must live in North Carolina for at least six months before filing the action for divorce.
  
• You or your lawyer must file a divorce complaint with the clerk of court in the county of your residence.
  
• The divorce complaint must be delivered to your spouse, either by the county sheriff or by certified mail.
  
• After waiting a specified period either you or your attorney can appear in court and obtain a divorce. Once the judge signs the order, your divorce is final, and you may remarry if you so desire.
  

Complexity and issues arise when adding other factors into divorce such as: child support, spousal support, child custody, asset division, etc.

How much will a divorce cost?
The cost of the divorce is directly related to the complexity of the case and to the extent to which the issues are contested. An uncontested divorce will cost much less than a contested divorce. In addition to paying your attorney at Hatch, Little & Bunn, LLP, you will be responsible for paying court-filing fees and the other costs incurred in the course of the divorce.

My wife cheated on me. Do I automatically qualify for a divorce in North Carolina?
North Carolina is a "no-fault" divorce jurisdiction, so neither party has to prove marital fault in order to obtain the divorce. As long as you and your spouse have been separated at least a year and your paperwork is correctly processed through the judicial system, you may obtain a divorce for any reason.

What is an absolute divorce?
Absolute divorce is the termination of a marriage. Either party can obtain an absolute divorce in North Carolina once you and your spouse have lived separate and apart for at least twelve consecutive months. You do not need any written document to show you separated on a given date; you merely need to remember the date on which you separated. You also need to be certain that at least one of you, at the time of the separation, intended for the separation to be permanent.

What if my spouse does not want the divorce?
You can obtain a divorce whether or not your spouse wants to be divorced, if you have been separated for one continuous year and the paperwork has been correctly processed.

What are the mechanics of an Action for Divorce?
The Plaintiff must file a complaint for divorce in District Court. The Defendant has 30 days from the date of service of the summons and complaint to file an answer or request an extension of time. The North Carolina General Statutes state that all material allegations in the Divorce complaint are deemed to be denied by the Defendant. Thus, one of the parties must appear before the Judge for a testimonial divorce, or a summary judgment motion can be filed which allows a party, or usually an attorney for the party to appear before the Judge to present the documents and obtain the divorce on behalf of the Plaintiff.

Does it matter who brings the action?
The person who brings the case first gets to talk first. There is no negative connotation attributable to the spouse who brings the action or to the person who responds to the action.

How long does a divorce take?
A minimum of 45 days from the date your divorce complaint is filed. The North Carolina Rules of Civil Procedure require that the answering party have 30 days to file an answer or request an extension of time. Once that time period expires, certain notice rules must be followed which account for the remaining time.

What is the difference between a legal separation and a divorce?
Divorces are not final for at least 6 months, while a legal separation can be final almost immediately. The largest difference between the two is that if you proceed with a divorce you are no longer married. A legal separation only separates the two parties - they remain married.

How does the court determine what is in the best interest of my children in a child custody case?
The court will examine a vast number of factors, including who the children are living with at the time the custody determination is made, the children's historical relationship with each of the parents, and each of the parents' ability to care for the children.

How is property divided in North Carolina?
All property is considered marital property unless proven to be separate property. Separate property falls into 3 categories in North Carolina: property owned by one spouse prior to the date of marriage, property inherited, and property acquired by gift from someone other than the other spouse. The division of the marital property is that which is just and right in accordance with the courts ruling. Generally, you are looking at a 50/50 split, absent some circumstance that indicates otherwise. Twelve different factors apply when assets are distributed including, but not limited to: the unequal earning power of the parties, the expectation of pension or retirement benefits, contributions made by one spouse to the education or career development of the other, the need of a parent with custody of a child or children of the marriage to occupy the marital residence and use or own its household effects.

When do I need to file for spousal support?
Alimony, or spousal support, should be filed for before a divorce is granted. Failure to bring an alimony claim before entry of a divorce judgment will bar the spouse right to bring a claim for alimony after. According to North Carolina law, "a judgment of absolute divorce obtained by the dependent spouse in an action initiated by him or her eliminates that spouse's right to alimony unless a claim for alimony has been asserted and left pending prior to the judgment, either in that action or an earlier action."

How do I know if I qualify for alimony?
The general rule is that a spouse is dependent when he or she makes less money than the other spouse. Technically, a dependent spouse is a spouse, whether husband or wife, who is substantially dependent upon the other spouse for his or her maintenance and support, or who is substantially in need of maintenance and support from the other spouse. A supporting spouse pays alimony to a dependent spouse when the court deems it necessary after considering statutory factors.

Are there different types of alimony?
There are three types of alimony, including:

• Permanent alimony - a type of alimony awarded after divorce. Permanent alimony consists of regular payments that may change in amount or end if the receiving party remarries.
  
• Temporary alimony - a type of alimony awarded pending a divorce or separation. Temporary alimony consists of payments that include enough money to afford the lawsuit and money to take care of needs until permanent alimony can be established.
  
• Lump sum alimony - also known as alimony in gross. Some states allow lump sum alimony payments that permit spouses to pay their alimony all at once.
  

What is a prenuptial agreement?
A prenuptial agreement (prenup) is a written contract created by two people before they are married. A prenup typically lists all of the property each person owns, as well as any debts, and specifies what each person's property rights will be after the marriage if there is a divorce.

Do I need an attorney to draft or review my prenuptial agreement with me?
Both you and your fiancé should each hire an attorney to individually represent you in the drafting and review of your prenuptial agreement. An experienced family law attorney can help you define your short-term and long-term goals in reaching an agreement with your fiancé.

What are the different types of child custody?
Child custody can be broken down into three separate categories:

• Temporary Custody - custody is assigned temporarily to one parent while permanent custody arrangements are being made.
  
• Legal Custody - separated into both sole legal custody and joint legal custody,
  • Sole legal custody - when only one parent holds the right to make legal decisions for the child.
    
  • Joint legal custody - when both parents hold the right to make legal decisions for the child.
    
• Physical Custody - separated into both sole physical custody and joint physical custody,
  • Sole physical custody - when the child lives with one parent and the other has specific visitation rights.
    
  • Joint physical custody - when a child is able to reside with each parent for a substantial amount of time during the course of a calendar year.
    

My husband and I are separated, and he moved to another state. He has filed for divorce and custody in his state. What do I do?
You should immediately contact a qualified family lawyer at Hatch, Little & Bunn, LLP to discuss your situation. If you and your child resided in your state for the past six months, your state would normally have "home state" jurisdiction to issue a custody order. You may need to contest the custody action in his state, although it is possible that his state can still order a divorce - a termination of the legal relationship between the two of you.

What factors do courts take into account when deciding who gets custody of the children?
A court gives the "best interests of the child" the highest priority when deciding custody issues. What the best interests of a child are in a given situation depends upon many factors, including:

• The child's age, gender, mental and physical health
• The mental and physical health of the parents
• The lifestyle and other social factors of the parents, including whether the child is exposed to second-hand smoke and whether there is any history of child abuse
  
• The love and emotional ties between the parent and the child
• The parent's ability to provide the child with food, shelter, clothing and medical care
• The child's established living pattern (school, home, community, religious institution)
• The quality of the schools attended by the children
• The child's preference, if the child is above a certain age (usually about 12), and
• The ability and willingness of the parent to foster healthy communication and contact between the child and the other parent.
  

Are mothers more likely to be awarded custody over fathers?
In the past, most states provided that custody of children of "tender years" (five and under) had to be awarded to the mother when parents divorced. This rule has been rejected in most states, including North Carolina. No state requires that a child be awarded to the mother without regard to the fitness of both parents. Most states require their courts to determine custody based on what's in the children's best interests without regard to the sex of the parent. See the above question to find out how courts determine what is in a child's best interest.

May I withhold visitation because my spouse will not pay child support?
No. If you withhold visitation because a spouse will not pay his or her child support, you are taking the law into your own hands and may be held in contempt of court. If your spouse will not pay child support, you should see an attorney who will advise you on how to recover the lost child support payments and to further ensure that your spouse continues to make timely payments in the future.

May I stop paying child support because my spouse will not give me my visitation and access?
No. If you withhold child support because a spouse will not allow you to exercise your visitation you are taking the law into your own hands and may be held in contempt of court. You should contact an attorney at Hatch, Little & Bunn, LLP who will advise you on what action you need to take to ensure that your visitation rights are not interfered with in the future.

What can I do if my ex-spouse refuses to pay child support?
If your ex-spouse has been ordered to pay either child support or maintenance and fails to do so, you can ask the court to hold your ex-spouse in contempt of court. If the ex-spouse is found to be in contempt, your ex-spouse could be imprisoned. Another available remedy is to garnish his/her wages; the disobedient ex-spouse's employer will deduct money from his/her paycheck and pay you directly.

What is domestic violence?
Domestic violence is any violent behavior used by one person in a relationship to control the other. Partners may be married or not married, living together, separated or dating. Violence can be criminal and includes: physical assault, sexual abuse, and stalking. Although emotional, psychological and financial abuses are not criminal behaviors, they are forms of abuse and can lead to criminal violence.

What steps should I take in filing a domestic violence claim?

• Call the police for immediate help.
• To charge the abuser with a crime, you will need to go to the Magistrate's Office. If you are able to do so, take evidence of being abused such as pictures or medical reports.
  
• Protective Orders are legal ways to have the abuser stay away from you. You may be able to obtain temporary possession of your home and temporary custody of your children.
  
• Contact a domestic violence attorney at Hatch, Little & Bunn, LLP immediately. Your lawyer will advise you of your options and assist you in obtaining necessary legal documents, shelter, and/or counseling.
  

What are the different types of domestic violence?
Domestic violence may include:

• Assault
• Battery
• Defamation of character
• False imprisonment
• Intentional, reckless, or negligent infliction of emotional distress
• Intentional interference with child custody, visitation, and/or a parent-child relationship
• Third-party negligence
• Infliction of a venereal disease
• Wrongful death

Are there any legal remedies for domestic violence?
Many states have elaborate laws designed to protect spouses from domestic violence by their spouses or other family members. A common remedy is for a court to issue a protective order ordering the alleged abuser to stop abusing. In addition, the orders often will order the abuser to stay away from the victim, the victim's home, or place of work.

Will I win a child custody suit if I have filed a domestic violence claim?
Possibly. Parents with a history of causing domestic violence may still be able to get custody by proving:

• Successful completion of a batterers intervention program,
• Non-abuse of drugs or alcohol, and
• The best interests of the child require that parent to have custody because the other parent is absent, has mental illness that affects parenting, or abuses drugs or alcohol that affects parenting.
  

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