FREQUENTLY ASKED QUESTIONS

Absolute divorce is the termination or legal dissolution of a marriage.

To obtain an absolute divorce, North Carolina requires that you and/or your spouse live in North Carolina for at least six months and be separated for at least one year before filing the action for divorce.

You or your lawyer must file the divorce complaint with the clerk of court in the county of your residence. That complaint must be delivered to your spouse, either by the county sheriff or by certified mail. After waiting a specified period, typically 40 days after service of the complaint, either you or your attorney can appear in court and obtain a divorce. The divorce is final once the judge signs the judgment, and you may remarry if you wish.

An action for divorce can be brought by either spouse, once you and your spouse have lived separate and apart for at least 12 consecutive months. You can obtain a divorce in North Carolina whether or not your spouse wants to be divorced. Additionally, North Carolina is a “No-Fault” divorce jurisdiction, and as such, neither party has to prove marital fault in order to obtain a divorce after a one-year separation.

Absolute divorce is just that, the termination of the marriage. You can obtain a divorce without resolving any of the other issues arising from your separation, such as custody, spousal and child support, and the distribution of your property and assets. However, be aware that North Carolina law requires that you file for things like alimony and equitable distribution before the divorce decree has been entered.

Divorce comes with a number of life-changing challenges, and if you are considering divorce it is best to consult with a professional you can trust. You, your family, your home, and your finances are all impacted by divorce.

If you are contemplating a divorce and want to be sure that you protect the life you’ve built, call our family law team at 704-512-0606 to set up a consultation.

North Carolina requires that prior to divorce, spouses live separate and apart for a period of 12 months.

The couples must actually live separate and apart; it is insufficient to live in separate parts of the house or separate bedrooms. Even couples living in separate households who maintain the appearance of being married do not meet the separation requirement.

• Examples of maintaining the appearance of being married include appearances in public places, shared meals, shared travel, access to one another’s living spaces, as well as other factors.

If the spouses reconcile during the period of separation, the one year separation period must restart and begin anew. Reconciliation is the resumption of marital relations. It restarts the separation period, voids a separation agreement, and determines the date at which marital assets will be valued.

Evidence that the parties held themselves out as married to the general public, even without sexual relations can support a claim for reconciliation in North Carolina. On the contrary, isolated incidents of sexual relations alone are not enough to support a claim of reconciliation in this State.

The process of divorce begins with separation and comes with a number of life-changing challenges. If you are considering separation or divorce, it is best to consult with a professional you can trust.

First and foremost, a claim for equitable distribution (ED) can be filed at any time during the period of separation, but it must be filed before the divorce decree is entered.

North Carolina follows the ED method of distributing property and assets following a divorce. In an action for ED, the Court must first classify the property as either marital or separate property as defined by statute. Next, the Court must divide the marital property equally, unless it determines that an equal distribution is not equitable. Separate property, on the other hand, is not subject to ED.

Courts consider several factors when deciding the distribution of property during a divorce including

• The income, property, and liabilities of each party at the time the property division will be effective;
• The duration of the marriage the age and physical and mental health of the parties;
• The need of the custodial parent to occupy or own the marital home;
• The expectation of pension, retirement, or other deferred compensation rights that are separate property;
• Contributions to increases in marital property, homemaking, and child-rearing;
• Contributions that one spouse made to the education or development of career potential to the other spouse;
• The acts of either party to maintain or neglect the marital or divisible property during separation;
• As well as a number of other factors.

Marital misconduct that does not involve the economic value of the marriage is not considered in regard to equitable distribution. However, something that relates to the economics of the marriage, such as spending money on a paramour, can be considered.

Equitable distribution can be complex. If you are considering separation or divorce, it is best to consult with a professional you can trust. You’ve worked hard to earn the life you’ve built and to secure the future you’ve planned. Let us help you protect it.

A claim for equitable distribution (ED) can be filed at any time during the period of separation, but it must be filed before the divorce decree is entered. ED places property into two categories for division: marital property and separate property.

“Marital property” is all real and personal property acquired by either spouse or both spouses during the course of the marriage and before the date of separation of the parties.

“Separate property” means all real and personal property acquired by a spouse before marriage or acquired by a spouse by bequest, devise, descent or gift during the course of the marriage.

Property acquired in exchange for separate property is separate property, as is income from separate property and passive increases in the value of separate property.

The word “acquired” is where the marital versus separate property equation gets tricky. North Carolina Courts use the source of funds analysis to determine acquisition and view the acquisition as an ongoing process.

Also important is the notion of active versus passive appreciation. Passive appreciation means appreciation due to something like inflation and is considered separate property and therefore not subject to ED.

Active appreciation, however, is subject to ED and considers the appreciation due to funds, talent, or labor exerted during the marriage to enhance the value of the otherwise separate property.

Equitable distribution can be complex. For more information and to discuss divorce and separation matters with a team of attorneys you can trust, give us a call today at 704-512-0606.

Child Custody involves two main categories: Legal Custody and Physical Custody. Legal Custody gives one or both parents the right to make legal decisions for the child. These decisions involve education, health care, religion, and the child’s general welfare. Physical Custody relates to where the child resides.

Either or both of these types of custody can be shared under a joint custody arrangement. Typically, under a joint legal custody arrangement, neither parent has a superior right to make major decisions. Instead, joint custody arrangements typically outline a procedure for resolving conflicts.

Joint physical custody does not necessarily require a 50-50 time split between the parents. Joint custody entails any situation where the child maintains a residence at the home of each parent and spends a significant amount of time with each.

Your child's well-being during the divorce process is likely atop the list of your concerns. A number of factors come into play when it comes to child custody. If you are considering separation or divorce, it is best to consult with a professional you can trust.

The standard for determining child custody in North Carolina is the “best interests of the child.” Though in the past, some states including North Carolina provided that custody of children of “tender years” had to be awarded to the mother, no such presumption exists any longer.

Instead, the courts consider custody without regard to the gender of the parent and consider a number of factors to determine the best interests of the child. These factors include:

• The child’s age, gender, mental health, and physical health;
• The mental and physical health of the parents;
• The lifestyle of the parents;
• The love and emotional ties between the parent and child;
• The parent’s ability to provide for the child (i.e., food, shelter, clothing, medical care);
• The child’s established living pattern considering things like school, home, and community and religious activities.
• The quality of the schools attended by the children;
• The child’s preferences if any, if the child has the requisite maturity to articulate a reasoned opinion;
• The ability and willingness of the parent to foster healthy communication and contact between the child and the other parent.

The best interests of your children are likely atop the list of your concerns. If you are considering separation or divorce, contact our experienced family law team as soon as possible.

North Carolina has adopted guidelines to streamline the process of determining child support.

The award of child support usually depends on income. This income can be from any source and includes wages, interests and dividends, rental income, retirement benefits, capital gains, and Social Security income. These guidelines are applied regardless of marital status.

Child support must be enough to meet the child’s needs for health, education, and maintenance. Child support takes into consideration the family’s estates, earnings, conditions, accustomed standard of living, childcare and homemaking conditions, and other factors.

Child support in North Carolina is based on an income-shares model that operates on the theory that a child should receive the same proportion of parental income as if the parties continued to live together.

There is a rebuttable presumption that the amount of child support calculated pursuant to the guidelines is correct. Deviations may be permitted as circumstances warrant. Some factors that the courts consider in determining support include:

• The child’s reasonable needs to health, education, and maintenance;
• The parties’ estates, earnings, and conditions;
• The childcare and homemaker contributions of each party;
• The assets of the parties;
• The standard of living;
• As well as other facts of the case.

Your children’s well-being and your ability to care for their needs are of paramount importance. If you have questions about child support call our family law team at 704-512-0606 to set up a consultation. Trust the attorneys at SeiferFlatow to help you achieve your family needs.

North Carolina allows an award of child support to be modified or vacated at any time. Modifying child support is permissible when there is a substantial change in circumstances regarding the child’s needs or the parents’ financial situations. The burden to substantiate the change in circumstance in circumstances is on the parent requesting the modification.

The fact that the child is older or that inflation has occurred is insufficient to support an upward modification of child support. On the other hand, a reduction in income or a reduction in the needs of the child may be used to show a substantial change of circumstances.

Further, under certain circumstances, a presumption for modification may exist for a substantial change of circumstances justifying a child support modification.

If your spouse has voluntarily quit a job to avoid his or her child support burden, this alone is not enough to automatically reduce child support. Factors that would be considered include the earning potential of the obligor spouse, which means the realistic expected income under the circumstances in consideration of the obligor’s age, mental health, and physical condition.

If you have questions about child support let us know, or call 704-512-0606 to speak with a family law attorney.

Custody decrees are always modifiable upon a showing of “changed circumstances.” The moving party must also show that the change would be in the best interests of the child.

Relocation, remarriage, or increase or decrease in the incomes of the parents, alone, will not suffice for modification of custody unless the moving party can demonstrate a substantial change affecting the welfare of the child.

In a situation where the custodial parent is proposing relocation and that relocation will significantly impair the non-custodial parent’s ability to see the child under the court-ordered visitation schedule, this will likely constitute a substantial change in circumstances warranting a modification.

Prior to discussing the modification, if any, the court must provide the custodial parent with permission to relocate. When it comes to relocating a child to another jurisdiction, North Carolina places the predominant weight on the best interests of the child.

In determining whether a move is in the best interest of the child, the court may consider:

• The capacity of the move to improve the child’s life;
• The custodial parent’s motives;
• The likelihood that the custodial parent will comply with visitation orders after he or she is no longer subject to the jurisdiction of North Carolina courts;
• The non-custodial parent’s integrity in resisting the relocation;
• The likelihood that a realistic visitation schedule can be arranged that will foster the parental relationship with the noncustodial parent.

The burden of proof is placed on the parent objecting to the relocation to demonstrate that the move will not serve the child’s best interests or that the move would also cause harm to the child.

Post-separation support means spousal support is payable until the earliest of:

• The date specified in the order for post-separation support;
• The entry of an order awarding or denying alimony;
• The dismissal of the alimony claim;
• The entry of the judgment of absolute divorce;
• Or the termination of post-separation support due to cohabitation, remarriage, or death of either spouse.

If there is a claim for alimony pending, post-separation support may be ordered in an action for divorce.

To be entitled to post-separation support, a spouse must prove: (1) that the spouse is dependent and the other is supporting; (2) that the spouse’s resources are inadequate; and (3) that an award is equitable after considering all factors, including marital misconduct.

Post-separation support may be awarded with or without any evidence of marital misconduct by the supporting spouse. However, if the supporting spouse offers evidence of misconduct by the dependent spouse, the court must consider it. Marital misconduct must occur prior to or on the date of separation to affect post-separation support. A determination of post-separation support and its amount remains in the discretion of the judge regardless of the findings on misconduct. This is not so for alimony.

Alimony is payment for the support and maintenance of a spouse. It can be in a lump sum or on a continuing basis. A spouse is entitled to alimony upon showing that (1) the spouse is dependent and the other is supporting; and (2) an award is equitable upon the court’s consideration of all relevant factors.

Some factors that are considered include:

• Marital misconduct
• The spouses’ relative earnings and earning capacities
• Their ages and physical, mental, and emotional conditions
• Their sources and amount of income
• The duration fo the marriage
• The contribution by one spouse to the earning power of the other spouse
• The effect of serving as a custodian of a minor child
• The standard of living enjoyed during the marriage
• The relative education of the dependent spouse and that spouse’s need for training to find suitable employment
• The parties’ assets and liabilities
• The property brought to the marriage
• The parties’ contributions as homemakers
• Each party’s relative needs
• Tax considerations
• Other economic factors
• The fact that income was previously considered in valuing an asset in equitable distribution.

If the court finds that the dependent spouse has committed a pre-separation act of illicit sexual behavior, the court may not award alimony. If the court finds that only the supporting spouse has committed a pre-separation act of illicit sexual behavior, the court must award alimony to the dependent spouse. If the court finds both spouses have committed pre-separation acts of illicit sexual behavior, the court may use its discretion to award or deny alimony.

Other bars to alimony include condonation as well as express provisions in premarital or separation agreements.

Collaborative law allows spouses who are seeking a divorce to make a good faith attempt to resolve disputes arising from the marriage by agreement and without having to resort to judicial intervention.

Collaborative law agreements must be in writing, signed by the parties and their attorneys, and must contain a provision for the withdrawal of the attorneys if the collaborative process does not result in a settlement. This means when things go wrong, the attorneys who have been working to assist the parties to resolve their disputes must no longer work on the case, and both parties must seek new representation and begin the divorce litigation process essentially anew.

When the collaborative process breaks down, you may feel like you are forfeiting the work, time, and expense you have invested in the collaborative process. You may feel also like the collaborative process in a state of limbo, which can lead to confusion, uncertainty, and prolonged discussions that seem to not solve any of the problems that you deem important.

Don’t let the frustration and anger you may feel prevent you from protecting your rights in a divorce. The collaborative process is not necessarily for everyone. If it works, it works. If it does not, you want a strong litigator and advocate in your corner.

You should know that if you have been involved in a collaborative divorce, a validly executed collaborative divorce agreement tolls all statutes of limitations while it is in effect; furthermore, all statements, communications, and work product generated during a collaborative divorce are not admissible under North Carolina Law.

If you have laid it all out there and given it your best shot to find an amicable and easy settlement to your divorce but it is just not working out, you may consider terminating the collaborative process. When the collaborative law approach falls short of meeting your needs and expectations, you should seek the counsel of an attorney who can properly litigate any claims you may have in your pending divorce and protect the life you have built.

During a divorce, cryptocurrency presents a challenge as it is difficult to identify and trace. Cryptocurrency’s nature allows a deceitful and motivated spouse to conceal assets with relative ease. Unlike banks and financial institutions, there are no records. Without knowing the individual’s “private key,” the currency cannot be located.

It is important to have a complete picture of all property owned between the spouses. In North Carolina, any property owned, whether jointly or separately, can be considered for the purposes of equitable distribution. Keeping in mind, this does not mean every piece of property will be divided between the parties or that the property will be divided equally. However, a judge can take into consideration all property owned.

Ultimately, if you know or believe your spouse owns cryptocurrency, you should address this issue with your divorce lawyer. An attorney can help you subpoena an exchange for information regarding your spouse’s private keys and virtual wallets. It is critical to hire an attorney with an understanding of cryptocurrency and knowledge of what to look for when divorcing a spouse who may utilize cryptocurrency.

If you are in a same-sex relationship and considering divorce, it is important to seek counsel with a Family Law attorney you can trust.

The same rights apply when considering divorce. If you were married in another state, and now live in North Carolina, you need to meet North Carolina’s minimum requirements for divorce. At least one of you must have resided in North Carolina for at least six months, you must have been separated and living apart for at least one year, and at the time you separated at least one of you must have intended the separation to be permanent.

You may have acquired assets and debts during the course of your marriage. Any assets and debts you and your same-sex spouse acquired during the marriage will likely be considered marital property and there is a presumption that that marital assets and debts should be divided equally in a divorce. This presumption can be overcome when certain factors are present and you should consult an attorney to discuss your specific set of circumstances.

Similarly, if children are involved, issues concerning custody and child support need to be considered. Finally, if you were a dependent or supporting spouse, issues concerning post-separation support and alimony may be relevant to your case.

Same-sex marriage is treated equally in North Carolina. You, your family, your home, your finances; these are all issues that are related to any marriage, and are issues that are impacted when divorce happens. If are in a same-sex marriage and would like to learn more about your rights, give our family law team a call at 704-512-0606 to set up a consultation.

Same-sex marriage is about equality. You have equal rights to protect the life you have built. Trust the attorneys at SeiferFlatow to help deliver you safely through this difficult time.