Family Law FAQ
What is alimony?
Are there different types of alimony?
How is property divided in North Carolina?
What is a prenuptial agreement?
I do not have a lot of money or property going into this marriage. Do I really need a prenuptial agreement?
How do I obtain a divorce?
What is an absolute divorce?
How long does a divorce take?
Does a spouse have to prove fault on the part of the other spouse to obtain a divorce?
What is the difference between a legal separation and a divorce?
What are the different types of child custody?
May I withhold visitation because my spouse will not pay child support?
What is alimony?
Alimony, or spousal support, is designed to provide the lower-income spouse with money for living expenses. This support is in addition to the money provided by child support. Alimony is tax deductible to the person who pays it, and included in the taxable income of the person who receives it.
Are there different types of alimony?
There are three types of alimony, including:
- Permanent alimony – a type of alimony awarded after divorce consisting of regular payments that may change in amount or end if the receiving party remarries.
- Temporary alimony – a type of alimony awarded pending a divorce or separation consisting of payments that include enough money to afford the lawsuit and money to take care of needs until permanent alimony can be established.
- Lump sum alimony – also known as alimony in gross. Some states allow lump sum alimony payments that permit spouses to pay their alimony all at once.
How is property divided in North Carolina?
All property is considered marital property unless proven to be separate property. Separate property falls into 3 categories in North Carolina: property owned by one spouse prior to the date of marriage, property inherited, and property acquired by gift from someone other than the other spouse. The division of the marital property is that which is just and right in accordance with the courts ruling.
Generally, you will receive a 50/50 split, absent some circumstance that indicates otherwise. Twelve different factors apply when assets are distributed including, but not limited to: the unequal earning power of the parties, the expectation of pension or retirement benefits, contributions made by one spouse to the education or career development of the other, the need of a parent with custody of a child or children of the marriage to occupy the marital residence and use or own its household effects.
What is a prenuptial agreement?
A prenuptial agreement (prenup) is a written contract created by two people before they are married. A prenup typically lists all of the property each person owns, as well as any debts, and specifies what each person's property rights will be after the marriage if there is a divorce.
I do not have a lot of money or property going into this marriage. Do I really need a prenuptial agreement?
Prenuptial agreements are not just for the wealthy. While they are often used to protect the assets of the wealthy, couples of more modest means are increasingly turning to them for their own purposes. For example, a marrying couple with children from prior marriages may use a prenup to spell out what will happen to their property when they die, so that they can pass on separate property to their children. Without a prenuptial agreement, a surviving spouse might have the right to claim a large portion of the other spouse's property, leaving much less for the kids.
How do I obtain a divorce?
You must meet the following requirements for a divorce in North Carolina, and follow these steps:
- You and/or your spouse must live in North Carolina for at least six months before filing the action for divorce.
- You or your lawyer must file a divorce complaint with the clerk of court in the county of your residence.
- The divorce complaint must be delivered to your spouse, either by the county sheriff or by certified mail.
- After waiting a specified period either you or your attorney can appear in court and obtain a divorce. Once the judge signs the order, your divorce is final, and you may remarry if you so desire.
Complexity and issues arise when adding other factors into divorce such as: child support, spousal support, child custody, asset division, etc.
What is an absolute divorce?
Absolute divorce is the termination of a marriage. Either party can obtain an absolute divorce in North Carolina once you and your spouse have lived separate and apart for at least twelve consecutive months. You do not need any written document to show you separated on a given date; you merely need to remember the date on which you separated. You also need to be certain that at least one of you, at the time of the separation, intended for the separation to be permanent.
How long does a divorce take?
A divorce takes a minimum of 45 days from the date your divorce complaint is filed. The North Carolina Rules of Civil Procedure require that the answering party have 30 days to file an answer or request an extension of time. Once that time period expires, certain notice rules must be followed which account for the remaining time.
Does a spouse have to prove fault on the part of the other spouse to obtain a divorce?
No. North Carolina is a no-fault divorce state whereby either spouse may obtain an absolute divorce based on one year's separation (the only other ground is proving incurable insanity which is rarely used).
What is the difference between a legal separation and a divorce?
Divorces are not final for at least 6 months, while a legal separation can be final almost immediately. The largest difference between the two is that if you proceed with a divorce you are no longer married. A legal separation only separates the two parties – they remain married.
What are the different types of child custody?
Child custody can be broken down into three separate categories:
- Temporary Custody – custody is assigned temporarily to one parent while permanent custody arrangements are being made.
- Legal Custody – separated into both sole legal custody and joint legal custody,
- Sole legal custody - when only one parent holds the right to make legal decisions for the child.
- Joint legal custody - when both parents hold the right to make legal decisions for the child.
- Physical Custody – separated into both sole physical custody and joint physical custody,
- Sole physical custody - when the child lives with one parent and the other has specific visitation rights.
- Joint physical custody - when a child is able to reside with each parent for a substantial amount of time during the course of a calendar year.
May I withhold visitation because my spouse will not pay child support?
No. If you withhold visitation because a spouse will not pay his or her child support, you are taking the law into your own hands and may be held in contempt of court. If your spouse will not pay child support, you should see an attorney who will advise you on how to recover the lost child support payments and to further ensure that your spouse continues to make timely payments in the future.
