The following questions and answers are intended to provide basic information and should not be relied upon or considered legal advice with respect to any particular situation.
Q. How long must I be separated from my spouse before I can file for a divorce?
A. North Carolina law generally requires that spouses live separate and apart for 12 full months before filing for divorce. Thereafter, either party can usually file for and be granted an absolute divorce.
Q. Must I file for divorce before I file for custody, alimony or property division?
A. No. Either spouse can file for child custody, visitation and child support, alimony and spousal support and property division as soon as the spouses separate. Some claims (including alimony and equitable distribution) must be requested before the divorce is granted or else they will be lost.
Q. Can I obtain a divorce in North Carolina if I was married or lived in another state?
A. Yes. You can file for and receive a divorce in North Carolina provided that you have been separated from your spouse for at least 12 months and you have lived in North Carolina for at least six months before filing for the divorce.
Child Custody and Visitation
Q. I am separated from the other parent of my children. How do I seek child custody or visitation?
A. All claims for child custody, visitation and child support must be filed in District Court. The case can usually be filed in any county where the child resides. The case is started by filing a complaint at the courthouse. Thereafter, an attempt is usually made to settle the case through negotiation. If the parties do not agree, the case will then be heard by a District Court Judge. The judge will listen to all of the evidence presented and will make a decision based solely on the child’s best interest.
Q. How will custody of the children be determined?
A. In a contested custody battle, custody of the children is determined through an exhaustive examination of the totality of the circumstances to determine the "best interests of the children." In determining what is in the best interest of the children, the judge will consider many factors, including:
· The pre-existing custodial arrangement;
· Who is the primary caretaker of the child;
· The historical relationship of the child and the parents;
· The nurturing ability of the parents;
· Which parent has better judgment;
· The wishes of the child, if of sufficient age and maturity;
· The parents' lifestyles, including substance abuse or chemical addiction of a parent;
· Whether a parent will encourage or discourage visitation;
· Continuity of a stable environment;
· The age of the child;
· A parent’s neglect or abuse of the child;
· The quality of each parent's home environment;
· The parental guidance each parent provides for the child;
· The ability of each parent to provide for the child's emotional and intellectual development;
· The relative fitness of the respective parents including their mental condition; and
· The length of time the present custody arrangement has been in effect.
Q. What is mediation?
A. Mediation is a technique used to attempt to resolve the custody and visitation dispute by agreement of the parties out of court. A mediation conference is attended by both of the parties, their attorneys if they are represented, and a neutral mediator. The mediator is usually an attorney who has been specially trained to mediate such cases. Each side will be given the opportunity to briefly tell their side of the story. Then the parties separate into sides to discuss the case privately with the mediator. The mediator will move from one side to the other, trying to settle the case. If an agreement is not reached, the mediator will end the conference, and the case will continue toward trial. The mediator cannot make any binding decisions in the case and usually cannot be called to testify if the case goes to trial. Mediation is designed to allow the parties to speak openly and truthfully at the mediation conference without punishing a party for the attempt to settle the case. Many cases are settled at mediation.
Child Support
The following questions and answers are intended to provide basic information and should not be relied upon or considered legal advice with respect to any particular situation.
Q. How is child support calculated?
A. In North Carolina, child support is calculated using the North Carolina Child Support Guidelines. The guideline worksheets provide a formula to determine the correct amount of child support to be paid after taking into consideration the monthly gross incomes of the parents, the number of children involved, the custody physical arrangement of the children, any preexisting child support paid by either parent, the daycare expenses paid by either parent, any health insurance premiums paid on behalf of the children by either parent and any other extraordinary and relevant factors that the court considers.
Q. Can the court set child support above or below the guideline amount?
A. Yes, in certain cases, the Court has the authority to set child support payments above or below the guideline amount. To deviate from the guideline amount, the Court must find that significant factors exist in the particular case and that those factors justify a different amount of child support. Most cases follow the guidelines.
Q. Can a child support order be changed in the future?
A. Yes. Depending on the facts of your case, grounds may exist to increase or decrease the amount of child support. A change will only be made if significant factors exist justifying the change. If your child support order is more than three (3) years old, you may be entitled to an increase in child support if the current factors of the case as applied to the guidelines result in a difference of at least 15% between the old amount and the new amount.
Property Division
The following questions and answers are intended to provide basic information and should not be relied upon or considered legal advice with respect to any particular situation.
Q. My spouse and I are separated. Am I entitled to a division of our property and debts?
A. Yes. Property division in North Carolina is called Equitable Distribution, or E.D. for short. In its simplest form, the Equitable Distribution law provides that all property acquired during a marriage is marital property, regardless of how the property is titled, and that the net value of such property, after subtracting any debts, will be divided equitably between the parties. There are many exceptions to this general rule as well as exceptions to the exceptions. To correctly determine what you should be entitled to in an Equitable Distribution case, you and your attorney must thoroughly review all assets and debts of both parties, including retirement plans and business interests.
Q. If I sign a Separation Agreement, will my right to Equitable Distribution be Lost?
A. Yes. Almost all separation agreement or property settlement forms contain a provision that waives a spouse’s right to pursue property division through the court system. Therefore, you should have your own attorney review the agreement before you sign it to determine whether the agreement is in your best interest. If you signed the agreement under severe duress or if you were significantly mislead as to the assets of the other spouse, you may be entitled to have the agreement rescinded so that you can pursue your case in court.
Q. Is there a time limit on my right to request Equitable Distribution?
A. Yes. Equitable Distribution can be requested at any time after the separation of the parties; however, a spouse’s right to request Equitable Distribution is lost once the divorce is granted. Therefore, you must properly file your claim for Equitable Distribution before the date that the divorce is granted. Timing is important in E.D. cases, and it is usually in your best interest to start the case shortly after separation so that all assets and debts can be identified and valued as close to the date of separation as possible.
Separation Agreements
The following questions and answers are intended to provide basic information and should not be relied upon or considered legal advice with respect to any particular situation.
Q. What is a Separation Agreement?
A. A Separation Agreement is a legal document used to settle some or all of the claims of spouses who have separated and intend to divorce. The document can resolve almost all issues relating to the dissolution of the marriage except for the divorce itself, which in North Carolina cannot usually be requested until the parties have lived separate and apart for 12 months. In North Carolina an absolute divorce must be obtained by filing a lawsuit and having a District Court Judge sign the divorce decree.
Q. Is a Separation Agreement binding?
A. Yes, unless obtained by fraud or duress. A Separation Agreement is a legally enforceable contract between spouses and can be enforced through the court system. However, a court can rescind an agreement if one party has not complied with the terms of the agreement or if the agreement was executed under duress or fraud. Always consult your own independent attorney before signing any Separation Agreement.
Q. Is a Separation Agreement permanently binding as to child custody, visitation and support?
A. Not usually. North Carolina law provides that the Court always has the authority to modify child custody, visitation and child support until the children reach the age of 18. Although a Separation Agreement is not fully binding on the issue of child custody, a court will consider the custody arrangement as set forth in the agreement, the amount of time that such arrangement has been in place, and the effect of such arrangement on the children. A Court may also consider the amount of child support listed in the agreement as being sufficient to provide for the reasonable needs of the child(ren).
Q. Is a Separation Agreement permanently binding on the amount of alimony agreed to?
A. Sometimes. The answer depends on whether the alimony is actually part of a comprehensive bargain including property division and alimony, or whether the alimony is “true” alimony. Always consult your own independent attorney before signing any Separation Agreement.
Alimony and Spousal Support
The following questions and answers are intended to provide basic information and should not be relied upon or considered legal advice with respect to any particular situation.
Q. My spouse and I have separated. Could I be entitled to receive alimony or spousal support?
A. North Carolina law provides that a dependent spouse may be entitled to collect alimony or spousal support from the supporting spouse if certain factors exist. Although fault is no longer required to receive alimony or support, marital fault still plays an important role in many cases by requiring alimony or support to be paid or by barring a spouse’s right to collect alimony or support.
Q. What factors will the court consider in deciding whether or not to award alimony?
A. The court will consider all relevant facts and circumstances, including the following:
- The marital misconduct of either of the spouses;
- The relative earnings and earning capacities of the spouses;
- The ages and the physical, mental, and emotional conditions of the spouses;
- The amount and sources of earned and unearned income of both spouses;
- The duration of the marriage;
- The contribution by one spouse to the education, training, or increased earning power of the other spouse;
- The extent to which the earning power, expenses, or financial obligations of a spouse will be affected by reason of serving as the custodian of a minor child;
- The standard of living of the spouses established during the marriage;
- The relative education of the spouses and the time necessary to acquire sufficient education or training to enable the spouse seeking alimony to find employment to meet his or her reasonable economic needs;
- The relative assets and liabilities of the spouses and the relative debt service requirements of the spouses, including legal obligations of support;
- The property brought to the marriage by either spouse;
- The contribution of a spouse as homemaker;
- The relative needs of the spouses;
- The tax ramifications of the alimony award;
- Any other factor relating to the economic circumstances of the parties that the court finds to be just and proper; and
- The fact that income received by either party was previously considered by the court in determining the value of a marital or divisible asset in an equitable distribution of the parties" marital or divisible property.
Q. Must I file my request for alimony before the divorce is granted?
A. Yes. A claim for alimony must be properly filed before the divorce is granted or else it will be permanently barred. Of course, most dependent spouses need the financial help immediately and therefore file a claim shortly after separation.
Q. What are the typical steps in a civil lawsuit?
A. The basic steps in a formal lawsuit include:
· Demand: Typically there is a dispute and one party will make an informal "demand" of the other, who may then send a "response". A lawyer can help you assess whether what you are requesting or offering is realistic, and help you avoid making admissions that can hurt you if you can’t agree on terms.
· Lawyer’s letter: If the principals can’t work things out among themselves, one party usually has an attorney send a "lawyer’s letter".
· Pre-litigation settlement discussions: There often is an informal "pre-litigation settlement discussion" involving the parties and their lawyers. Sometimes all it takes is a letter and phone call to straighten things out.
· Formal suit: If the informal attempts at resolution fail, formal action may be started by "filing suit". There are strict "statutes of limitations" which impose time limits requiring that actions to be initiated within a set time frame or the right to sue is barred.
· Answer: Once the defendant is "served" with legal process, it must provide its formal "Answer" within a prescribed time frame. If the defendant does not answer on time it is said to "default" and generally will automatically lose its case. Never ignore a summons as the clock is ticking on your obligation to file an Answer.
· Discovery: A lawsuit may involve "pre-trial discovery" in which one or both parties attempt to get evidence as to what happened, perhaps by taking the testimony of witnesses, or examining documents or physical evidence.
· Motions: In a lawsuit, either side may make "motions" to try to narrow the issues, or compel the other side to do something, or even to have the court decide the matter without the need for a trial, as if all the facts are agreed to and only the application of the law to the facts is at issue.
· Mediation or Arbitration: Many civil and domestic cases are referred to mediation or arbitration. At mediation, a neutral mediator attempts to bring both sides of the case into agreement. If an agreement is reached a written consent judgment can be prepared and signed. If no agreement is reached, the mediation is ended and the case proceeds to trial. At arbitration, each side presents their case to the arbitrator, and the arbitrator makes a decision like the judge or jury would do at trial. In binding arbitration, the decision is final; however, at non-binding arbitration either side can appeal the ruling and have a trial.
· Judge’s pre-trial conference: Before a trial, the Court will typically order a "pre-trial conference" to narrow issues down still further and perhaps to get the parties to agree to a settlement.
· The trial: Then comes the "trial", either by a judge alone, or with a jury to decide the facts and the judge to decide the law.
· Judgment: After the trial, the Court will "enter judgment" by issuing an order setting forth the decision of the judge.
· Post trial motions and appeals.
· Collecting the judgment: The victorious party may have received a judgment stating what he or she is entitled to recover. Then it is his or her job to collect the "judgment". Collecting judgments can be difficult if the defendant’s assets are not easily located.
Tips for Testifying in Court
1. Always tell the truth. As long as you tell the truth, you will always be able to give consistent statements, and you cannot be “tripped-up” by the other lawyer.
2. Listen to the question completely before you start to answer. Make sure that you understand the question before you start to answer. If you do not understand the question or if you were unable to hear the question, ask that the question be repeated. Take time, if necessary, to think about your answer before you begin to speak.
3. Do not guess or speculate. If you do not know the answer to a question don’t attempt to guess or speculate about the answer. It is acceptable to say “I don’t know” or “I don’t remember.”
4. Speak to the judge or jury. Although the question will usually be asked by a lawyer, always direct your answers to the judge or the jury. Speak loud enough for the judge or jury to hear you. Remember that it will be the judge or jury that will make the final decision about your case. Always verbalize your answers by speaking clearly and loud enough for others in the courtroom to hear you, including the court reporter. Do not rely on head gestures such as a nod; your answer must be audible for the tape recorder or the court reporter.
5. Make good eye contact. Remember to make good eye contact with the judge or the jury. It is the judge or jury that will make the decision in your case and making good eye contact will increase your credibility with the judge or jury.
6. Be courteous. Address the judge as “Your Honor” and address opposing counsel as “yes, sir’ or “yes, ma’am.” Never argue with the judge or with opposing counsel. Do not talk back to the opposing lawyer. If the other lawyer badgers you, let them look like the aggressor; do not argue back. Do not answer a question from the other lawyer with a question of your own. The lawyers get to ask questions, and the witnesses must answer the questions.
7. What to do if you hear “objection.” If you hear “objection” after you are asked a question, stop immediately. Let the judge decide whether or not you can answer the question.
8. It is OK to cry. If you become emotional during your testimony, remember that is perfectly fine to cry. If you need a tissue, a drink of water, or a break, ask the judge for permission.
9. Stay in control. Remember that the judge and jury are watching you throughout the trial and they will make decisions based on your actions throughout the trial. Even when you are not on the witness stand, you must stay in control and act calm and credible. It will harm your case if you lose your temper. Do not react with words or motions to what others say on the witness stand. Keep your credibility. Remember that the judge will hear your side of the story as well.
10. Communication with your lawyer during trial. If you need to communicate with your lawyer during trial, write a short note. Do not talk to your lawyer, as it is very important that your lawyer be able to hear the judge, the other lawyer and witnesses while they are speaking.
11. Proper Dress. Remember that you are in court and dress accordingly. Do not wear shorts, T-shirts or clothing with obnoxious slogans or writing. A neat appearance helps to indicate your respect for the Court.
Q. What should I expect from my lawyer, and how can I assist my lawyer?
A. The following is a brief overview of what to expect from your lawyer and how to assist your lawyer in representing you most effectively and efficiently.
Communication
Your lawyer should give you a basic description of your legal matter and let you know what problems to expect, how they'll be handled and when things will happen. Your lawyer should promptly return phone calls and answer your questions.
Your lawyer should:
- Tell you what to expect,
- Explain when things should happen,
- Tell you what's important in your case,
- Estimate what things will cost,
- Help you analyze the cost-effectiveness of various strategies,
- Explain delays or date changes,
- Explain what your case is worth,
- Explain the risks of going to trial versus settling,
- Prepare you for your deposition, and
- Prepare you for your trial.
You should:
- Follow through on what you agree to do,
- Prepare a written summary and chronology of events,
- Tell your lawyer everything – DO NOT LIE TO OR MISLEAD YOUR ATTORNEY,
- Understand that your lawyer has a duty to keep whatever you say confidential,
- Inform your lawyer of new developments,
- Respect your lawyer's time and schedule,
- Provide requested information promptly,
- Let your lawyer know if you will be unavailable,
- Help with research and leg work that does not require legal training, and
- Pay your bills.
Ethics
The North Carolina State Bar in Raleigh governs the ethical conduct of lawyers in North Carolina. The State Bar also administers a fee arbitration program to help resolve fee disputes between clients and their attorneys. The North Carolina State Bar can be contacted at Post Office Box 25908, Raleigh, North Carolina 27611 and (919) 828-4620. Each state, including North Carolina, has ethical laws that govern lawyers. These rules require lawyers to:
- Represent their clients with undivided loyalty,
- Keep their clients' confidences,
- Represent their clients competently,
- Represent their clients within the bounds of the law, and
- Put their clients' interests ahead of their own.
Q. Are the things that I tell my attorney confidential?
A. Yes. The laws governing attorneys in North Carolina provide that attorneys must preserve the confidence of all confidential information obtained from a client. The law provides for a few exceptions to this general rule, but the exceptions only apply under specific circumstances. Remember that in a criminal case, only conversations between you and your attorney are confidential. Any other conversations can and will be used against you in court.