You likely have many questions before, during and even after divorce. It is important to understand your rights and make sure your concerns are addressed.

1. Does "fault" matter in North Carolina?

North Carolina is a "no fault" state for purposes of an absolute divorce. However, in a divorce from bed and board claim, fault grounds could be any of the following: abandonment, maliciously turning the other out of doors, cruel and barbarous treatment endangering the life of the other, offering indignities to the person of the other spouse so as to render his or her life condition intolerable and life burdensome, excessive use of alcohol or drugs, or adultery. These fault grounds will be considered by the court in making a determination of a divorce from bed and board claim. Fault grounds will also be considered in claims for post-separation support and alimony.

2. What is an absolute divorce?

In North Carolina, an absolute divorce is a cause of action requesting the dissolution of a legal marriage. A claim for absolute divorce is separate from claims for child custody, child support, equitable distribution, post-separation support and/or alimony. In North Carolina, a claim for absolute divorce simply asks for the termination of a legal marriage after having been separated for one full year.

3. When can I file for an absolute divorce?

In order to obtain an absolute divorce in North Carolina, you must meet the following criteria: (1) the parties must have a valid marriage; (2) either husband or wife is a citizen and resident of North Carolina for at least six (6) months prior to the complaint being filed; (3) husband and wife have lived separately for at least one year immediately preceding the filing of the complaint with the intent of at least one of them to end their marriage; and (4) husband and wife have at no time during the separation resumed the marital relationship.

4. What is divorce from bed and board?

Divorce from bed and board is a fault-based claim that authorizes a court to order that the parties be allowed to physically separate from each other typically without any negative ramifications.

5. What is abandonment?

Abandonment is when one spouse, without reason or the consent of the other spouse, terminates cohabitation with his spouse with the intent to remain separate. Abandonment can come in the form of constructive or actual abandonment. For example, one spouse may remove himself mentally and physically from the marriage, yet still remain in the home. In another example, a spouse may decide to no longer sleep in the same bedroom or bed as her spouse, therefore, she is abandoning the marriage in that the parties are no longer participating in acts usually associated with marriage. In some cases, one spouse makes the marital home so unbearable that the other spouse has no choice but to leave. If an "innocent spouse" must leave the marital residence because it is so unbearable said spouse has been constructively abandoned by the "offending spouse." The spouse who is leaving cannot then be legitimately charged with abandoning the house just because they left.

6. What if I do not want to get divorced and my husband/wife does?

Any person will be able to obtain an absolute divorce once the statutory requirements have been met. Once a complaint for absolute divorce is filed, the defendant will have thirty (30) days to respond with an answer. If the defendant fails to respond, the plaintiff can proceed with asking the court to grant an absolute divorce assuming the statutory requirements have been met. The only defense to an absolute divorce is to demonstrate that the party requesting the divorce has not me all of the statutory requirements. The most common argument against a request for an absolute divorce is that the separation has not been of a sufficient length when the action was filed. In North Carolina, that length is one year.

7. What does being a resident in North Carolina mean for purposes of getting divorced?

A person is considered a citizen and resident of North Carolina when he or she is domiciled in this state for at least six months. Domicile is defined as residence and the intention of the person to make a permanent home in this state. A person must be a citizen and resident of North Carolina for a divorce action to take place in this state.

8. My wife and I no longer live in the same residence. Are we "legally separated"?

Legally separated is typically the term associated with separating after the court has ordered a divorce from bed and board. Once you are no longer residing together, you are physically separated for the purpose of starting the clock on the one-year separation requirement for purpose of filing for absolute divorce.

9. My husband and I tried to get back together for a while. Does that make the one-year separation period start over for the purposes of getting a divorce?

The divorce statute specifically states that, "Isolated incidents of sexual intercourse between the parties shall not toll the statutory period required for divorce predicated on separation of one year." A married couple has resumed marital relations during the period of separation if there is a voluntary renewal of the husband and wife relationship, as shown by the totality of the circumstances. In applying this standard, our courts have looked at the actions of the couple in holding themselves out as man and wife as well as the intent of the parties. In the end, if a married person wants to satisfy this requirement of the law in order to obtain a divorce, he should dwell separate and apart from his spouse for the separation period and avoid any conduct which is indicative of marriage.

10. Is there common law marriage in North Carolina?

No. Common law marriage is not recognized in North Carolina.

11. If my husband and I lived in separate bedrooms for one year prior to making a claim for divorce, would that "constitute" one year's separation for purposes of filing for absolute divorce?

No. Parties cannot reside in the same residence during the separation period. North Carolinas' statute specifically states that, "[i]solated incidents of sexual intercourse between the parties shall not toll the statutory period required for divorce predicated on separation of one year." A married couple has resumed marital relations during the period of separation if there is a voluntary renewal of the husband and wife relationship, as shown by the totality of the circumstances. The courts of our state will look at the actions of the parties in holding themselves out as husband and wife as well as the intent of the parties. Ultimately a person should live separate and apart (meaning in separate residences) from his/her spouse for the required year so as to avoid any confusion.

12. Can I get a divorce if I just moved here four months ago?

Probably not. Either you or your spouse has to be a citizen and resident of North Carolina for at least six (6) months before the lawsuit for divorce can be filed.

13. How long does the divorce process take once the complaint is filed?

Each county in North Carolina has its own local rules and procedures when processing a complaint for absolute divorce. If a plaintiff files a complaint for absolute divorce, a defendant is entitled to thirty (30) days to respond to the lawsuit. A defendant is entitled to ask the court for additional time in which to respond and in most cases a court will allow a defendant an additional thirty (30) days to respond if requested by the defendant. If a defendant fails to respond to the complaint within thirty (30) or sixty (60) days if applicable, the plaintiff is entitled to proceed with their claim for absolute divorce. In Mecklenburg County, unlike other counties, no court appearance will be required by either party for a court to enter a judgment of absolute divorce. Therefore, once a defendant has been served in Mecklenburg County, a judgment of divorce could technically be entered approximately forty-one (41) days or approximately seventy-one (71) days after the defendant has been served. In reality, you should allow a few additional days and maybe even up to a week to allow the court to process the divorce.

14. How can I get my marriage annulled?

You may request the court to annul your marriage if you meet the statutory requirements. The following marriages are subject to annulment: 1) Between any two persons nearer of kin than first cousins; or 2) Between any two persons who are double first cousins; or 3) Between a male person under sixteen (16) years of age and any female; or 4) Between a female person under sixteen (16) years of age and any male; or 5) Between persons either of whom has a husband or wife living at the time of such marriage; or 6) Between persons either of whom is at the time physically impotent; or 7) Between persons either of whom is at the time incapable of contracting from want of will or understanding; or 8) A marriage entered into under the representation and belief that the female partner to the marriage is pregnant, followed by the separation of the parties within forty-five (45) days of the marriage and which continues uninterrupted for one (1) year, shall be voidable if no child is born to the parties within ten (10) lunar months of the date of separation.

15. Can I get my maiden name back after I divorce?

Yes. Pursuant to N.C.G.S. §50-12, a wife may resume the use of her maiden name by requesting she be able to do so in her complaint for absolute divorce. Only the wife may ask for this relief. If a husband files the divorce and the wife fails to answer and counterclaim with a request that she be allowed to return to her maiden name, she may be deemed to have waived the opportunity. The husband cannot request that his wife be forced to resume the use of her maiden name if she does not want to. A court will simply grant the wife the use of her maiden name but not compel her to use it.

1. What rights do I have to enforce a Existing Court order?

Enforcement of family court orders in North Carolina is a convoluted process in many cases. Understanding the terms of your court order is vital to ensure your rights are protected and that both parties are following the terms of the agreement. There are different types of Family Court Orders:

• Separation agreements
• Property settlement agreements
• Child custody
• Child support
• Spousal support

Failure to comply with a court order can result in contempt, which can be both a civil and criminal action. Certain agreements, such as a separation agreement, can result in a breach of contract or other civil action to enforce the terms of the agreement.

1. What resources are there if I am being abused?

There are many places you can turn to if you or someone you know is in an abusive relationship. You should not be embarrassed or ashamed. Get help if you need it. Contact someone you can trust. If you feel you have no one to turn to, contact a local resource, such as the Battered Women's Shelter, Victim's Assistance, or the Women's Commission. Once you are safe, contact an experienced family law attorney who may be able to help you obtain a court order to keep your abuser away from you.

2. What can a 50B protective order give me?

A basic 50B Order orders the abuser to stay away from and to not assault, threaten or harass the victim and/or minor child(ren). It can also provide other types of relief, including but not limited to: granting a party possession of a residence; requiring a party to provide a spouse and his or her child(ren) suitable alternate housing; award temporary custody of child(ren) and establish a "temporary safe visitation plan"; order either party to make child support or spousal support payments; or order the offending party evicted from the residence.

3. What is an emergency ex parte domestic violence order?

An emergency ex parte order is an ordered that is issued by the court after hearing from one side only. If a judge finds that you have presented sufficient evidence of danger of acts of domestic violence to you and/or your children, he or she will issue an emergency ex parte 50B order which lasts for ten (10) days and which can provide for various forms of relief such as the abuser is to have no contact with you and/or your child(ren). If an ex parte order is entered, the court must set a hearing within ten (10) days the entry of the ex parte order and after providing five (5) days' notice to the other party.

4. What type of evidence should I present in a 50B action?

At a domestic violence hearing, you should tell the judge exactly what the abuser has done to physically hurt you and/or your child(ren) or what threats of bodily injury he/she made to you and/or your child(ren) and/or why exactly you fear for your safety. You should be direct and to the point and focus on the behavior the abuser has engaged in. You may ask the judge to have the sheriff pick your child(ren) up from the abuser or his/her family if they are with him/her or his/her family. When on the witness stand, you should be as specific and clear as possible and stay focused on the issues related to your abuse and you should present any evidence supporting your allegations of abuse at this time. There are many different types of evidence that may be introduced, for example, you would want to bring; any photos of broken furniture or objects; photos of your physical injuries; medical records; police reports as well as records of work missed as a result of the abuse.

When a marriage ends, property and finances that have long been intertwined must be separated, valued and divided. The property division aspect of the divorce process can be lengthy and complex. If significant assets are involved, it can be difficult to reach an agreement, and extensive litigation may become necessary to sort through all the issues.

1. How Is Property Division Determined?

Asset division in North Carolina is generally subject to a legal standard called equitable division. This means the court will consider various factors to determine an outcome that it considers fair (which may not necessarily be an equal division). These factors include:

• The duration of the marriage
• The age, health and earning of both spouses
• Income, property and debt of both spouses
• Expectation of retirement benefits
• Contributions to each spouse's education
• Liquid or nonliquid property
• Tax consequences

Establishing which property is part of the marital estate — and therefore subject to division — is a separate hurdle in its own right. Certain property interests such as gifts, inheritances and property acquired before the marriage can be excluded from property division on the grounds that it is one spouse's separate property. There is also the question, in many divorces, of who gets the house.

2. How Property Is Classified

Property is classified in three different ways during the equitable distribution process. The three different types of property are:

• Separate property: all property owned by either spouse before the marriage, property obtained as an inheritance or gift and property obtained after the date of separation
• Marital property: all property owned that was obtained during the marriage, including all retirement benefits and vested pension
• Divisible property: real and personal property obtained during the marriage but before separation

Our lawyers understand the nuances of marital versus separate property and are skilled in handling all types of issues, including cases involving substantial assets. Gregory Plumides is an accomplished trial attorney with nearly two decades of experience; he is well-equipped to fight for you in court. He is also skilled at leveraging strengths in clients' cases to negotiate favorable out-of-court resolutions.

3. What Happens to The House?

Because of the memories and emotions tied to it, the marital home is often one of the most contentious sticking points in the property division process of a divorce. For most divorces, it is better for you and your spouse to work together on a property division settlement that satisfies both of you. While neither you nor your spouse is likely to be happy with every aspect of the agreement, it is better to remain in control of the process. A judge who does not fully understand your situation could rule in a way that leaves neither of you happy. Some common resolutions to control of the marital home include:

• Selling the house and splitting the proceeds
• One spouse buying out the other's share of the home to continue living in it
• Continuing to split the payments on the house if one spouse will continue living there so your children do not have to move

4. I Own a Business - What is Used to Determine Child Support?

Tax issues can have a significant impact on your future. We will evaluate your specific situation and develop a plan to protect your personal and professional financial goals. Your tax income is not always the income used in child support calculations. Do not make the mistake of thinking you can deduct all of your business expenses to reduce child support obligations. Child support is based on North Carolina's child support guidelines to determine monthly payments. We can walk you through the calculation process so you know what to expect during divorce and child support proceedings.

5. What Happens to My Retirement Accounts?

Specific laws and guidelines are followed when splitting up retirement accounts during divorce. Every situation is unique and depends on the details of each account, including how long the employee has worked for the company and if their account is vested.

• 401(k)s
• Pensions
• Annuities
• Health care benefits
• Military benefits
• Survivor benefits

Pensions are more complicated during divorce. Vested pensions are considered marital property and will be divided according to equitable distribution guidelines. Non-vested pensions will be divided if the employee worked for the company for 11 years or more. You are able to receive money from a vested annuity if you worked there for 12 years or more. Spouses are not entitled to any money in a non-vested annuity.

6. Is fault used in dividing marital property?

It depends. Fault is never used when dividing marital property although, if one spouse is shown to have committed "marital waste," the same could be a factor when the court divides the marital property. Fault or marital misconduct is only relevant as to claims for divorce from bed and board, post-separation support and/or alimony.

7. What is Equitable Distribution?

Equitable distribution is a cause of action requesting that the court equitably divide marital assets, marital debts, separate assets, separate debts and/or divisible property. A claim for Equitable distribution must be pending prior to the entry of divorce or you will forever lose your rights to request an equitable distribution from the court.

8. When can I file for Equitable Distribution (ED) and when is ED determined?

You may file a claim for Equitable Distribution any time after separation and even before an action for divorce is filed. Equitable Distribution is a long process starting with the filing of the claim and concluding with the court's determination as to how the property should be distributed. In Mecklenburg County, prior to an ED claim being set for trial, the parties must participate in a form of alternative dispute resolution (ADR) such as mediation or judicial settlement conference.

9. What happens to my finances in a divorce?

Financial matters are a grave concern for many of our clients. We know how divorce can impact your financial outlook now and in the future. Our diligent preparation and experience as trial lawyers helps us develop a strategic plan to protect your best interests.

One of the most emotionally trying parts of any divorce is determining child custody. However, the most important thing to consider in any child custody case is the best interests of the children. In nearly every case, it is better for parents to find consensus on parenting time that protects both parents' relationships with the children. We understand that there are some times where this will not be possible. When necessary, we will be ready to fight in court to protect your children and your parental rights.

1. What determines the Basis of Child Support?

We know that child support issues can be stressful. North Carolina has set formulas for the determination of child support; however, other elements are open to interpretation and often require the attention of a skilled family attorney to be properly assessed. For example, factors such as health care expenses and day care costs need to be considered when determining the final child support amount. Our lawyers carefully consider your entire situation and work hard to ensure you receive what you deserve or do not pay more than you should. Guidelines in North Carolina apply to parties who have a combined income of less than $300,000 per year. Child support obligations awarded by the court must continue to be paid until the child is 18 years old or graduates from high school, whichever happens last. Child support payments are terminated if the child is emancipated. As part of the process, an attorney will assist with all types of child support issues, including:

• Calculations
• Modification of payments
• Enforcement of payments
• Arrearages
• Establishment of paternity
• Show cause orders for failure to pay
• Calculating Payments

2. Can I Modify Child Support and Alimony Payments?

Alimony and child support payments exist because big financial changes usually accompany a divorce. And because circumstances can continually change over the years, North Carolina law allows for the possibility to modify those payments. When Can Terms of Your Order Be Changed? Much like modifying child custody, courts will only approve a modification of alimony or child support payments if there has been a material, substantial change in circumstances. These changes could be:

• Your child suffering from an illness or injury that requires more child support for medical care
• Your child attending a new school that charges more for tuition
• Drastic change in day care costs or health insurance
• You or your spouse receiving a substantial raise
• Involuntarily losing your job

3. How Do I Protect My Parental Rights in Custody Disputes?

One of the most emotionally trying parts of any divorce is determining child custody. However, the most important thing to consider in any child custody case is the best interests of the children. Legal Custody Vs. Physical Custody It is important to understand the difference between legal custody and physical custody in North Carolina law. The parent with legal custody or parents with joint legal custody make major decisions about the welfare of the minor child, including school, education and religious issues. Physical custody refers to each parent's ability to physically spend time and take care of the children. The children may live with one parent while spending a few nights with the other parent. Or the children may spend equal time with both parents. Tailoring Our Approach To Your Situation Whether you are a divorcing couple or a single parent, we can help you with all child custody issues. These include, but are not limited to:

• Determining if parents will share legal custody or if one parent will have final decision-making authority
• Figuring out where the children will live and how much time they will spend under the other parent's roof
• Deciding how the children will spend their holidays and summer and school vacations
• Protecting the visitation or custody rights of grandparents
• Helping a stepparent adopt a stepchild

As board-certified family law specialists, attorneys Michael Romano and Richard Johnson know how to handle these delicate matters with precision and care. They will help you find the best resolution for you and your children. In nearly every case, it is better for parents to find consensus on parenting time that protects both parents' relationships with the children. We understand that there are some times where this will not be possible. When necessary, we will be ready to fight in court to protect your children and your parental rights.

4. When Can I Modify Child Custody?

Parents know that it is hard to predict what will happen in their children's lives. No one can say what a child's needs will be at age 15 when the child is only five years old. For divorced or single parents living under a child custody and visitation order, the law does allow for changes in certain situations. North Carolina courts will only modify a custody order if there has been a substantial and material change in circumstances that affects the well-being and best interests of the children. Common examples of these substantial changes include:

• A parent needs to or wants to relocate for employment or educational opportunities
• The child's school schedule changes
• One parent is abusive or is abusing substances
• The child's school performance declines while in the custody of one parent
• A parent suffers from a serious injury or illness that prevents him or her from being a primary provider
• The teenage child expresses a wish to spend more time with the other parent

5. When Can I Relocate with My Children?

Relocating with your children post-separation or divorce is a complex process in North Carolina. Many parents relocate for an employment or educational opportunity or to be closer to family. Relocation disputes can be frustrating for everyone involved. You can relocate with your children after divorce if you have an agreement with the other parent or with the court's permission. Relocating without an agreement or court approval can result in more legal problems in the future and could even impact your child custody or visitation rights.

6. What is the Adoption Process In North Carolina?

Adopting a child is a tremendous responsibility that should never be taken lightly. In North Carolina, you must strictly adhere to the laws in order to accomplish a legal adoption. What Legal Steps Are Needed To Adopt? There are two types of adoptions in North Carolina, private adoptions and agency adoptions. The statutory procedures for private adoption or agency adoption will differ. The adoption process will permanently sever the relationship between the child and his or her biological parents and their families. An adoption begins by filing a Petition for Adoption. A party wishing to file a Petition for Adoption must also provide the following documents:

• A preplacement assessment
• The consent to adopt from the natural, biological parents
• An affidavit from the biological mother indicating the names, known addresses and marital status of the biological parents
• The certified copy of the background information on the adoptee-child's health, social, educational and genetic history, which is provided by his or her biological parent(s) or by the adoption agency placing the child up for adoption
• Any court order or pleading regarding the adoptee-child's custody or visitation
• An affidavit accounting for any payment made in connection with the adoption
• The document identifying any individual whose consent to the adoption is required and had not been obtained at the time your petition for adoption was filed

Once the petition is filed, notice must be served on any individual whose consent to the adoption is required by law and whose consent had not been obtained at the time the petition was filed. The court will then set a hearing date on your adoption petition within 90 days. If the adoption takes place by consent, and the court finds the adoptive parent fit and proper, there will be no need for a hearing.

7. Can I Adopt as a Step-Parent?

In order for a stepparent to become a legal parent, the other biological parent's rights need to be terminated. Termination can occur when the other biological parent voluntarily terminates his or her parental rights. This does not mean the biological parent will stop having a relationship with the child. In some cases, you will need to pursue legal action to terminate that person's parental rights so you can become the legal parent of the children. A biological parent can file a motion to terminate the parental rights of the other biological parent under several different circumstances, including:

• No child support being paid for one year or longer according to the terms of the order
• Abuse or neglect of the child
• Abandonment of child
• Inability to properly care for the child

The stepparent adoption process results in the stepparent obtaining all the legal rights of the biological parent who has had his or her parental rights terminated through the adoption. This allows for the biological parent and stepparent to act as a family and make decisions together for their children. Several documents must be provided when filing a petition for adoption. The documents include:

• Preplacement assessment
• Consent to adopt from the biological parents
• Affidavit from the biological mother stating the names, addresses and marital status of the biological parents
• Certified copy of the adopted child's health, education, social and genetic history
• Any court order regarding the child's custody or visitation
• Affidavit for any payment for the adoption
• Document identifying any required consent for the adoption

8. Can I Relocate with my Child during Custody Proceedings?

Relocating with your children post-separation or divorce is a complex process in North Carolina. Many parents relocate for an employment or educational opportunity or to be closer to family. Relocation disputes can be frustrating for everyone involved. You can relocate with your children after divorce if you have an agreement with the other parent or with the court's permission. Relocating without an agreement or court approval can result in more legal problems in the future and could even impact your child custody or visitation rights.

9. What Legal Steps Are Needed to Adopt?

There are two types of adoptions in North Carolina, private adoptions and agency adoptions. The statutory procedures for private adoption or agency adoption will differ. The adoption process will permanently sever the relationship between the child and his or her biological parents and their families. An adoption begins by filing a Petition for Adoption. A party wishing to file a Petition for Adoption must also provide the following documents:

1. A preplacement assessment
2. The consent to adopt from the natural, biological parents
3. An affidavit from the biological mother indicating the names, known addresses and marital status of the biological parents
4. The certified copy of the background information on the adoptee-child's health, social, educational and genetic history, which is provided by his or her biological parent(s) or by the adoption agency placing the child up for adoption
5. Any court order or pleading regarding the adoptee-child's custody or visitation
6. An affidavit accounting for any payment made in connection with the adoption
7. The document identifying any individual whose consent to the adoption is required and had not been obtained at the time your petition for adoption was filed

Once the petition is filed, notice must be served on any individual whose consent to the adoption is required by law and whose consent had not been obtained at the time the petition was filed. The court will then set a hearing date on your adoption petition within 90 days. If the adoption takes place by consent, and the court finds the adoptive parent fit and proper, there will be no need for a hearing.

10. Do Grand Parents have any Child Custody Rights?

While divorces often have the largest effect on children, there are numerous other relationships that change as well. This includes grandparents, who sometimes find they are spending much less time with their grandchildren. Grandparents generally have standing to sue for custody of their grandchildren if they allege parental unfitness or child neglect, even if there is no ongoing custody dispute. However, even though grandparents may have standing to seek custody, they may not have standing to seek visitation under similar circumstances unless there is an ongoing custody dispute. In North Carolina, grandparents have limited visitation rights. You must be able to show the existence of a strong relationship with your grandchildren. You also have to prove that continued contact with your grandchildren is in their best interests. Under current North Carolina law, grandparents may be granted visitation rights provided there is an ongoing custody dispute. In most cases, grandparents will only be able to seek visitation rights. In rare circumstances, however, when you fear for the safety of your grandchildren, it may be possible to seek custody. This can include if the parents are:

• Abusing the children
• Addicted to drugs or alcohol and refusing to seek help
• Neglecting the children's health
• Sick and unable to provide the proper care to their children
• Voluntarily giving up custody to a third party

11. Will my child have to testify in court?

In North Carolina, it is entirely in the judge's discretion as to whether the testimony of a child will be heard. A party must request that the child(ren) testify and/or speak with the judge and the other party can either consent to the request or oppose the request. If one party requests that the child(ren) testify and the other party opposes the request, the judge will decide if the child(ren) testifies. If both parties request that the child(ren) testify/speak with the judge, it is still the judge's decision as to whether the judge will speak with the child(ren) and/or allow the child(ren) to testify. If a judge determines that a child is of appropriate age and maturity to provide the court with helpful information, the court may order the child(ren) to testify. If the judge allows a child's testimony and if the parties agree, the judge has the ability to speak to the child(ren) in private, in the judge's chambers. The judge may require the attorneys for the parties to be present during the questioning or may require that the attorneys not be present during the questioning if the judge is going to speak to the child(ren) in chambers. If the judge allows a child's testimony and if the parties do not agree that the judge has the ability to speak to the child(ren) in private, in the judge's chambers, then the child(ren) must testify in open court. Typically, judges will do everything possible to prevent the child from having to testify in any capacity in an effort to avoid traumatizing a young child. As the child grows older and/or reaches the age of majority (18), the court may require him or her to testify in an open courtroom. These issues should be discussed with your attorney as you prepare for court and your concerns should be addressed thoroughly and completely with your attorney.

12. What is the difference between legal custody and physical custody?

It is important to understand the difference between legal custody and physical custody in North Carolina law. The parent with legal custody or parents with joint legal custody make major decisions about the welfare of the minor child, including school, education and religious issues. Physical custody refers to each parent's ability to physically spend time and take care of the children. The children may live with one parent while spending a few nights with the other parent. Or the children may spend equal time with both parents.

13. When can a claim for child custody be filed? Once a child custody order has been entered, can it be modified?

If there is no order or agreement by the parties resolving the issue of child custody, a child custody claim may be filed by any party at any time so long as the parties reside separate and apart. Custody is always modifiable by the courts. The courts have the inherent responsibility to protect the best interests of the minor children of this state. As a result, the court is always willing to hear motions to modify any type of custody order that's been entered if certain changed circumstances can be shown. A party moving the court to modify a child custody determination has the burden of showing that since the entry of the last order, there has been a substantial and material change of circumstances affecting the best interests and welfare of the child(ren). Only if this burden has been met, may a court modify the previous order setting forth custody.

14. What does visitation mean in North Carolina?

In general, visitation falls under the "custody" umbrella. Oftentimes, courts would enter custody orders that granted "custody" of a minor child(ren) to one party and 'visitation' of the minor child(ren) to the other party. However, courts are moving in the direction of using the terms of primary and secondary custody. Primary custody is the term used to described where the child(ren) will spend most of his/her/their time whereas secondary custody is used to describe where the child(ren) will spend less time. In many cases, both parties are entitled to exercise visitation with the minor child(ren). You must keep in mind that each case is different and the court is empowered to order whatever type of visitation it believes is in the best interests of the child(ren).

15. What is joint custody? What is sole custody?

There is no set definition in North Carolina as to joint custody or sole custody. Many people believe that joint custody represents a true sharing of time and expenses for their children. Joint custody may sometimes be further classified into primary and secondary custody or physical and legal custody. Sole custody is often thought of as a situation where one party has the primary physical and legal control over a child or children and the other party simply has visitation rights. Again, there is no set definition in North Carolina statutory or case law for joint or sole custody. Each case is different from the other and a court will make arrangements as it sees fit and which serve the best interests of the minor children involved.

16. What is a custody evaluation and when should one be conducted?

A custody evaluation is when an objective third party is paid to assess each of the parents in order to assist the court in making a determination as to custody. Either party may ask the court to have a custody evaluation performed. As a matter of logistics, it is preferable to have a custody evaluation requested early on in the legal process so as not to cause unnecessary delay. Custody evaluations may take anywhere from a week to a month, depending on how in-depth the evaluation is. In addition, the evaluation may involve interviews with the parties as well as collateral witnesses and psychological testing of both parents and the children.

17. What impact could dating have on child custody?

There could be ramifications from dating when you are involved in a child custody case. For example, if the person you are dating is considered by the court as someone who is not in the best interests of the child(ren) whose custody is in dispute, it could cause a judge to award custody to the other parent. A court may determine that a new boyfriend or girlfriend is not a good influence on the child(ren) and should not be allowed around them. Courts are not in the habit of making moralistic rulings but a court may determine whether a relationship is in the best interests of the child(ren).

18. Do the North Carolina Courts favor one parent over the other in custody cases?

No. The tendency of the court to favor the mother over the father has been formally abolished pursuant to N.C.G.S. 50-13.2(a). Therefore, a court's primary concern is making a determination as to who will "in the opinion of the judge, best promote the interests and welfare of the child." N.C.G.S. 50-13.2(a).

19. Do children get to decide who they will live with?

A court may take the wishes of the child into account when making a child custody determination but the court must consider a number of different factors with the wishes of the child being just one of several factors.

Alimony and post-separation support are often among the most contentious issues in any divorce. One spouse believes he or she deserves more financial support, while the other thinks he or she is paying too much. This is especially true when one spouse was financially dependent on the other. Please note: In North Carolina, if a judgment of absolute divorce is entered prior to filing a claim for alimony, you may never be able to file a claim for alimony, so be certain to speak with a knowledgeable attorney about your options.

1. What is the Difference between Alimony and Post-Separation Support?

Post-separation support is different from alimony. Post-separation support is temporary support designed to help the less financially secure party during the divorce process. Alimony is meant to be long-run. However, the courts use the same factors when determining both alimony and post-separation support; some, but not all factors include:

• Length of marriage
• Financial circumstances of both parties
• The education and training of each spouse
• Whether one spouse supported the other through school

The long-term financial needs of a spouse are some of the principle factors in determining whether temporary support or permanent alimony will be awarded. Our lawyers understand how these cases work and what a successful outcome will require. That includes taking your case to trial if necessary to protect your financial security. Alimony and post-separation support can be modified or terminated in some cases. However, you will need to prove there has been a substantial change in circumstances to have a chance at success.

2. Does "fault" matter in North Carolina?

North Carolina is a "no fault" state for purposes of an absolute divorce. However, in a divorce from bed and board claim, fault grounds could be any of the following: abandonment, maliciously turning the other out of doors, cruel and barbarous treatment endangering the life of the other, offering indignities to the person of the other spouse so as to render his or her life condition intolerable and life burdensome, excessive use of alcohol or drugs, or adultery. These fault grounds will be considered by the court in making a determination of a divorce from bed and board claim. Fault grounds will also be considered in claims for post separation support and alimony. Marital misconduct may apply to an alimony claim only after the court has made a determination there is in fact a dependent spouse and a supporting spouse and that the supporting spouse has the ability to pay support to the dependent spouse.

3. What is post-separation support?

Post-separation support, is basically temporary alimony. Post-separation support is simply an award which is made relatively early in the litigation process in order to make sure that if there is a dependent spouse, that spouse has his or her needs met well before his or her alimony claim is heard by the court. A party must be a "dependent spouse" before post-separation support can be ordered.

4. What impact could my dating have on post-separation support and alimony?

Illicit sexual behavior is a marital misconduct ground under our post-separation support and alimony statute, which may be considered by the court both in awarding spousal support and making a determination of the amount and duration of the payments. However, the illicit sexual behavior must have occurred prior to or on the date of separation of the parties to be considered. If the dating took place prior to or on the date of separation of the parties and it involved illicit sexual behavior, the court can consider it as a factor determining support. If the dating takes place only after the date of separation, the court may consider these post-separation acts as corroborative evidence of allegations of illicit sexual behavior before or on the date of separation. Simply put, if you enter into a dating relationship very quickly after the date of separation, you run the risk that your former spouse will believe you were in a relationship with this person before you separated. A common suggestion from family law attorneys is that their clients not engage in any dating relationship until all their divorce-related claims, including spousal support and child custody, are resolved.

5. Is fault used in dividing marital property?

No. Fault is never used when dividing marital property. Fault or marital misconduct is only relevant as to claims for post-separation support and/or alimony.

6. How do I ensure my right to equitable distribution of marital assets?

In order to make sure your right to an equitable distribution of the marital assets you must file a claim for equitable distribution before an absolute divorce is granted. Your claim for equitable distribution must be pending with the court prior to an absolute divorce being granted. If an absolute divorce is granted and you do not have a pending claim for equitable distribution, you will lose your right to equitable distribution and all property will be distributed according to title.

7. How is property divided in North Carolina?

In North Carolina, there is a presumption that equal is equitable which in essence means that a division of marital assets and debts between the parties on a 50-50 basis is presumed to be equitable. This does not mean, however, that equal is always equitable. There are several statutory factors the court may consider when dividing assets which may result in an unequal distribution in favor of one spouse over the other. An equal division of property does not mean that each asset is divided in half. The goal is to make sure that each spouse is distributed an equal amount of the marital assets and an equal amount of the marital debt

1. Should I consider Mediation?

The benefit of mediation is that parties who use the mediation process avoid the time, stress and expense of a court proceeding. Mediation is oftentimes much less expensive than proceeding through the court system. Mediation also provides the parties with the opportunity to determine the terms and conditions under which their specific issues will be resolved as compared to leaving those decisions in the hands of a judge. Mediation will offer the parties as much control over resolving their case as they can have as once a case is set for litigation, it will be up to a judge to determine what the outcome will be.

2. What is the attorney's role in mediation?

An attorney's role in mediation is to advise the client as to what may or may not be reasonable settlement terms under the facts and circumstances of their particular case. An attorney should have an idea of the potential outcome of the case if the case were to be litigated. Based on what the attorney may believe, the attorney should advise a client as to what may or may not be reasonable settlement under the circumstances. The attorney should be there to provide as much guidance as the client needs

1. What are Premarital and Postnuptial agreements?

Prenuptial or premarital agreements must follow the guidelines under the Uniform Premarital Agreement Act. Prenuptial agreements can provide protection to both parties during marriage and in the event of divorce. This agreement needs to be accurate and enforceable to be effective so it is best to work with an experienced lawyer who knows when a prenup is needed and can draft a clear and correct agreement. Most prenups will address the following:

• Rights and obligations of both parties, as long as they do not violate public policy or criminal laws
• Each party's right to manage and control property, including buying and selling property
• How property will be divided upon divorce or death
• How spousal support will be modified or eliminated in the event of divorce

Postnuptial agreements are created after you get married but before any separation. This is a legal, valid and binding legal document that documents how property and assets will be divided in the event of divorce. Postnuptial agreements can include various other types of stipulations that are enforceable as long as both parties agree, and the agreement is accurate and free of mistakes. Prenuptial and postnuptial agreements need to be acceptable to both parties. This means both parties must agree to the terms stated in the legal document for it to be valid. Failing to have the other party agree to the terms or having one party sign the agreement under duress or if one party was coerced into signing could result in your agreement being invalid and not enforceable.

2. When Do I Need a Prenup?

One of the most common questions people ask about prenuptial agreements is if they and their future spouse actually need one. In some cases, such as young couples without a great deal of assets, a prenuptial agreement may not accomplish much. Prenups Can Protect Crucial Assets

• Anyone with a great deal of assets should consider a prenuptial agreement. A prenuptial agreement can classify certain assets as nonmarital, protecting them during the property division process. Some common situations where a prenup is useful include if you:
• Are getting remarried and have children from another marriage: A prenup will protect assets for your children in the event of another divorce.
• Own a business: If you are the sole owner or the partner in a business, it would be wise to shield it from a divorce through a prenup. A lengthy dispute could affect the company's ability to earn a profit.
• Bought the house that you and your spouse will live in: Disputes over the marital home can become quite heated during the financial division process. If you want to retain the home, you can include that in a prenup.
• Have significant retirement assets: Classifying your retirement assets as nonmarital property will leave you better positioned for the future.
• Do not want to be responsible for your spouse's debts: You could potentially be on the hook for a part of your spouse's debts, such as credit card debt, during a divorce.