Divorce is a complex process. After all, untangling two lives that have become intertwined over many years isn’t easy. There are many decisions you’ll have to make during the divorce process. As you prepare to make those decisions – decisions regarding the division of property (including your assets and debts), the potential sale of your home, the updating of your legal and insurance documents, and other important matters, gathering information pertaining to those matters ahead of time will help to simplify matters to some degree.
It is also unfortunate to say, but important to be aware, that in a divorce, relationships can become extremely strained. Often, people can become so emotional that they act in unpredictable ways which are completely out of character. It is not unusual for a spouse to take paperwork without the other spouse’s knowledge, or even to destroy important paperwork in anger, or out of a desire for revenge. Even if you may not expect that sort of behavior from your spouse, it is still a wise precaution to save copies of important documentation and information while you still have access to it.
Certainly, the information needed will vary depending upon your unique circumstances. However, information that is usually helpful to gather includes:
With respect to any documentation you may gather, it is always best to collect at least three to five years’ worth of information if possible, or more if you have been in a long-term marriage. Although gathering this information may be time-consuming and tedious, it is a worthwhile effort in the long run in order to save yourself time, expense, and headache down the road.
If you need to speak with an experienced divorce attorney, please contact Adkins Law to arrange a consultation.
We live in a “do-it-yourself” age, and the practice of law is no exception. There is, after all, so much information available online, that many make the assumption that they can learn all they need to know, and handle the divorce process for themselves. While it is understandable that some might make this assumption, it is an assumption that comes with many hidden costs and pitfalls. Often, people go into a do-it-yourself divorce process assuming they will save money and time, when in fact, doing so ends up costing them more of both. Even if your case may seem “simple” and as if you and your spouse may agree on many issues, it is far too easy to make mistakes that may come back to haunt you down the road. Some of the more common pitfalls of do-it-yourself divorce include:
Ultimately, even if you feel that your divorce is “simple” in nature, and that you and your spouse agree upon all important issues, seeking the advice of a knowledgeable and experienced attorney will help to ensure that the process ultimately goes smoothly, and that you do not encounter any unexpected (and potentially costly) issues in the future. You may lose rights to valuable property and assets you would otherwise be entitled to, or end up paying more or getting less in alimony or support than you otherwise would, or losing a substantial amount of parenting time with your children – and those are only a few possibilities of many.
An attorney who is qualified and experienced in the practice of family law will be able to identify any issues you may have overlooked, point out any potential negative consequences of certain decisions, and advise you of what to expect throughout the divorce process.
The term alimony comes from the Scottish legal concept of aliment, which required a husband to provide for his wife her lodging, food, clothing, and necessities in the event they divorced. In North Carolina, alimony has evolved into monetary payments that may be paid from a supporting spouse to a dependent spouse. To have a valid claim for alimony, you must have a supporting / dependent relationship.
A supporting spouse is defined as a spouse upon whom the other spouse is actually substantially dependent for maintenance and support or from whom such spouse is substantially in need of maintenance and support. A dependent spouse is defined as a spouse who is actually substantially dependent upon the other spouse for his or her maintenance and support or is substantially in need of maintenance and support from the other spouse. A wife, for example, who earns $150,000.00 per year, would be a supporting spouse over a husband who stays at home to keep the children. A husband, for example, who earns $175,000.00 per year would be a supporting spouse over a wife who earns $40,000.00 per year.
It is important to note that affairs play into alimony by either barring or guaranteeing that alimony is awarded. If a dependent spouse participates in an act of illicit sexual behavior (sleeps with someone other than their spouse) during the period of marriage, the dependent spouse is barred from being awarded alimony. If the supporting spouse participates in an act of illicit sexual behavior during the period of marriage, the court shall order that alimony be paid to the dependent spouse. If both parties participated in illicit sexual behavior, alimony shall either be denied or awarded at the discretion of the court after consideration of all the circumstances. Sexual acts that occur a day after the date of separation are not acts that would bar or guarantee alimony.
How much alimony am I entitled to? How long will I receive alimony? Unlike child support, there is no calculator to determine an alimony amount or duration in North Carolina. Instead, the court considers a number of factors including the length of marriage, the reasonable needs of the spouses, the ability of one spouse to pay alimony, the dependent spouse’s standard of living, the dependent spouse’s educational background, and whether there was any marital misconduct during the marriage. Generally, longer marriages result in alimony award of longer durations; people who are high income earners will usually pay a higher amount than people with modest incomes.
If you would like to speak to an experienced family law attorney regarding alimony, please contact Adkins Law and we can arrange a consultation.
Where child support is concerned, typically, both parents are in agreement that their children should continue to be supported and nurtured to every extent possible. While parents may disagree on exact dollar figures, generally, the desire to support the child is there. Alimony, however, can be quite a different scenario. Perhaps unsurprisingly, the idea of paying money to continue to support a spouse after the marriage relationship has ended can be an emotionally difficult concept for some. After all, if a marriage has ended, there are more than likely some bitter feelings on one level or another. On the other side of the coin, if your marriage has ended and you are the spouse who is seeking support, you may feel resentful, after giving up your career to stay at home and raise children, that your ex-spouse seems not to understand that sacrifice and willingly pay support. All of these feelings are understandable.
In the midst of all of these emotions, it can be helpful to try and focus on the facts – what the law requires, and when those laws apply. Doing so can often help reduce the emotional angst you may feel over the situation, and may help you to take a more practical look at your reality. It is not at all unusual to feel uncertain about how much alimony might be awarded in your particular case, or for how long the payments might be expected to last. This, too, is understandable. Gaining a basic understanding of the law and working closely with a knowledgeable and experienced attorney that you trust will go a long way toward relieving the stress and anxiety that you may feel over this aspect of your divorce.
Typically, there are two types of alimony awards – temporary and permanent. Temporary alimony awards are often referred to as “post-separation support” and are a temporary, no-fault form of support that is usually awarded from the date of separation until either the entry of a final alimony award, or the dismissal of the alimony claim.
As is the case with child support, the parties can agree to alimony amounts outside of court as part of their separation agreement. For many couples, if they are able to work cooperatively and amicably and agree on the terms of support, this is often preferable to a long, public, contentious court battle. In some cases, however, coming to an agreement on spousal support simply isn’t a realistic option, and in those cases, the court can make the determination if necessary.
Unlike some states, North Carolina residents are not automatically entitled to alimony, nor is there a set formula for determining the exact amount of alimony that should be awarded. In North Carolina, the court must first make a determination as to whether one spouse is “substantially dependent” upon the other for his or her “maintenance and support”. Alimony might be awarded indefinitely, or for a specified period of time. It is typically, though not always the case, that if a marriage has lasted less than ten years, an alimony award will last for no more than the equivalent of half of the duration of the marriage. The court may also provide that alimony terminates in a variety of ways – either at the expiration of a predetermined time limit, when one party begins to cohabit with another, when one party remarries, or by resumption of marital relations. Ultimately, this, too, is in the discretion of the court.
In determining the amount and duration of alimony payments, the court may consider evidence of several factors, including:
Generally, a court will have broad discretion in making an alimony determination, and may consider any factor “relevant to the economic circumstances” of the parties that it wishes. When it issues the alimony award (or declines to issue an award), the court must provide the parties with specific written reasons for its decision. Either spouse will have the opportunity to appeal the award if they wish, and if a dependent spouse is ultimately awarded alimony, they may seek recovery of their attorney fees.
When alimony is awarded, the parties should be aware that it is typically deductible by the spouse who is paying, and reportable as income to the spouse who is receiving payments. When an alimony award is entered, the state which enters the award will usually have continuing jurisdiction over the award, and as a result, any modifications sought or enforcement efforts needed will be brought in that state as well.
If you need to speak with an experienced family law attorney, please contact Adkins Law to arrange a consultation.
The termination of alimony largely depends on the terms set forth regarding duration, and whether the alimony award is put in an unincorporated separation agreement (contract) or a court order (judgment, consent order, or incorporated separation agreement).
Alimony that is provided for in a court order, whether this is awarded in an order pursuant to trial, a consent order, or a separation agreement that has been approved by the court and incorporated into a divorce decree or other order is court ordered alimony. Thus even if you agree to alimony in a consensual, contractual separation agreement, if that separation agreement is later incorporated and made part of a divorce decree, it transforms from a contract to an order. Court ordered alimony, regardless of the terms of the separation agreement, terminates statutorily upon the death of either the supporting or the dependent spouse, and also upon the remarriage or cohabitation of the dependent spouse. N.C.G.S. 50-16.9(b). So, when there is an order for alimony in place, alimony terminates upon (1) death of either spouse, (2) remarriage of dependent spouse, OR (3) cohabitation of dependent spouse.
Cohabitation is statutorily defined as … “cohabitation means the act of two adults dwelling together continuously and habitually in a private heterosexual relationship, even if this relationship is not solemnized by marriage, or a private homosexual relationship. Cohabitation is evidenced by the voluntary mutual assumption of those marital rights, duties, and obligations which are usually manifested by married people, and which include, but are not necessarily dependent on, sexual relations.” To determine whether a couple has voluntarily assumed the rights, duties, and obligations of married people, the trial court must consider the totality of the circumstances. The primary policy in making cohabitation, not just remarriage, grounds for termination is the economic impact on the dependent spouse. It would not be fair, in other words, for a dependent spouse to be in and continue in a relationship where he or she may enjoy an economic impact from the relationship (i.e. new romantic interest contributes income) without the status of being married. A supporting spouse cannot automatically cease paying alimony due to the dependent spouse’s cohabitation or remarriage without a court order terminating the alimony.
Examples of when a court has found that NO cohabitation exists:
The courts seem to hold that parties are cohabitating when they are in a (1) mutually exclusive dating and sexual relationship; (2) consistently, if not exclusively spend overnights together, or have a residence together; (3) hold themselves out in the same ways as a married couple would; (4) go on dates, travel together, keep clothes and toiletries at each other’s homes, and provide care (if applicable) for each other’s children; and (5) mix finances and contribute financially to each other, pay bills and contribute to household expenses together, and maintain joint bank accounts.
When, on the other hand, an unincorporated separation agreement is involved, the terms of termination of alimony provided for in the contract dictate. Thus if no term in the unincorporated separation agreement provides for termination of alimony, it may continue indefinitely. A contractual support obligation of alimony in an unincorporated separation agreement, for example, that provided that alimony should be paid to the dependent spouse to support her while she obtained a college degree continued even after the death of the supporting spouse. The death of the supporting spouse did not end his obligation to support the dependent spouse until she graduated from college and his estate was required to provide the alimony payments to the dependent spouse. See White v. Graham, 72 N.C. App. 436, 325 S.E. 2d 497 (1985).
To contrast against court ordered alimony, while cohabitation will result in the termination of a support order entered by a court, either as the result of a trial or by entry of a consent order, cohabitation will not terminate a support obligation arising from an unincorporated separation agreement unless so specified in the contract. See Jones v. Jones, 144 N.C. App. 595, 548 S.E. 2d 565 (2001).
Unless provided otherwise in a separation agreement, however, reconciliation between parties who remain married may terminate an obligation to pay alimony, even if contracted for in an unincorporated separation agreement. Reconciliation, or the resumption of marital relations, is defined as the voluntary renewal of the husband and wife relationship, as shown by the totality of the circumstances. N.C.G.S. 52-10.2. To reconcile, there must typically be substantial objective indicia of cohabitation. Reconciliation did not occur, for example, in a case where the husband and wife spend four hours a day, six days per week together, in the former marital home, having dinner together, visiting with the minor children, and having occasional sex together because the husband and wife maintained separate residences, did not share chores or household responsibilities, did not hold themselves out as husband and wife, did not indicate to others that their problems had been resolved, and did not indicate that they desired to terminate their separation. Fletcher v. Fletcher, 123 N.C. App. 744, 474 S.E. 2d 802 (1996). The Court of Appeals has held, on the other hand, that reconciliation has occurred when the husband and wife lived together for four months following the execution of a separation agreement, had sexual relations, filed a joint tax return, and held themselves out as husband and wife. See Schultz v. Schultz, 107 N.C. App. 366, 420 S.E.2d 186 (1992).
In a nutshell, if alimony is court order, it will terminate upon (1) death of either party, (2) remarriage of dependent spouse, or (3) cohabitation of dependent spouse. If alimony is in an unincorporated separation agreement, it will terminate upon the terms of that contract, if ever; unless the parties remain married and resume marital relations.
N.C.G.S. § 50-6 is the statute in North Carolina that addresses absolute divorce. N.C.G.S. § 50-6 provides in part that “Marriages may be dissolved and the parties thereto divorced from the bonds of matrimony on the application of either party, if and when the husband and wife have lived separate and apart for one year, and the plaintiff or defendant in the suit for divorce has resided in the State for a period of six months. …a divorce under this section shall not affect the rights of a dependent spouse with respect to alimony which have been asserted in the action or any other pending action. Whether there has been a resumption of marital relations during the period of separation shall be determined pursuant to G.S. 52-10.2. Isolated incidents of sexual intercourse between the parties shall not toll the statutory period required for divorce predicated on separation of one year.”
The requirement that one of the parties to an absolute divorce, the plaintiff or the defendant, must have resided in North Carolina for at least six months before the filing of the divorce action is jurisdictional. Thus without one party having lived in North Carolina for the residency requirement of at least six months before filing for the divorce, the court will not have the jurisdiction to consider the divorce. The residency requirement has been defined as meaning one party is actually domiciled in North Carolina with an actual residence and the intent to remain permanently or for an indefinite period of time. The intent of a party to live in North Carolina at some future time is not enough, nor is it enough that a party have a residence in North Carolina – they must actually be domiciled at that North Carolina residence. The fact that a party is not a citizen of the United States is not required either. A party, for example, that is a German national and not a United States citizen, but that lives in North Carolina and intends to remains in North Carolina with no desire or intent to return to Germany, is a resident of North Carolina within the meaning of N.C.G.S. § 50-6.
The requirement that the parties live separate and apart for one year is jurisdictional. Thus if the parties have not actually lived separate and apart for at least one year, the court lacks the jurisdiction to consider the divorce. Living separate and apart meaning actually, physically living separate and apart; not in different rooms within the same residence. The parties must live in different residences for at least one year, and at least one party must intend for the separation to remain permanent.
North Carolina also requires that the divorce complaint be verified. This means that the party filing the action certifies and signs that they have read and understand the complaint, and intend to file the complaint. This is a jurisdictional requirement. Thus if a divorce complaint is not verified by the plaintiff, the court will lack the ability to consider the divorce. The complaint must be verified at the time of filing; it is not sufficient to obtain verification of the complaint before the complaint and summons are served on the defendant. When the plaintiff fails to verify the complaint, the trial court never obtains jurisdiction over the divorce action, and a divorce order entered in the action is void.
So how do I get an absolute divorce from my spouse? As long as you have lived in North Carolina for at least six months with the intent of remaining in North Carolina, and have lived separate and apart with the intent of remaining separate and apart from your spouse for at least a period of one year, you may file a verified complaint seeking an absolute divorce from your spouse. Once the verified complaint is filed, it must be served on your spouse and they have the opportunity to respond. The defendant may respond, and the parties may request that the court enter an judgment of divorce, or if the defendant does not respond, the plaintiff may file a motion for summary judgment with the court and provide the court with a proposed judgment of divorce. The court then may enter the judgment of divorce, and the parties will legally be divorced.
Approximately nine percent (9%) of all existing wills are invalid for one reason or another. If you die without a valid will, you die intestate, and lose control over what happens to your property. This usually also results in your estate paying a lot more to settle your affairs, which leaves less assets for your heirs. Generally estates settle much faster when you have a valid will that names people, charities, or other institutions that you want to inherit your property.
What kind of wills are there and how do I know if it is valid? Most commonly, to have a valid will, people have a formal will drawn up and executed. This consists of a typed will that specifies where your property goes, who will settle your estate, who will care for your children if they are minors, and who will administer any trusts the will may establish. Wills may also be handwritten (holographic wills) or oral. Handwritten and oral wills are not always valid and may only be considered valid in certain circumstances.
If you are married and die intestate, your property will go to your spouse and any children that you have. Each state, including North Carolina, has a specific formula to determine what percentage your spouse and children receive. If you have children from different relationships, they may be entitled to inherit as well, which may lead to an outcome you would not necessarily favor.
If you are not married, your relatives will inherit your property. In these cases, what you may have intended to go to close friends, charities, or an educational institution, may end up going to a distant relative that you may have never had a relationship with. If you die without a will and have no relatives, your estate will likely escheat to the state where you live. Thus only unmarried people without children and without property can justify not making a will; otherwise, you need to have a will in place.
About half of Americans die intestate. Many of these people leave large estates and have minor children. To have a valid will in North Carolina, you need to execute the will with two witnesses and a notary. If you need to have a will drafted, or have an estate planning attorney review your will to ensure that it is valid, contact Adkins Law to schedule a free estate planning consultation.
Often times, when parents separate, they are able to agree to a parenting arrangement that is in their child’s best interests and works well for the parents. In many cases, flexible schedules between the parents work well without conflict until the child is an adult. This is, however, not always the case.
In situations where parents cannot agree to the custody schedule, they need a child custody order. A child custody order sets out the plan for making decisions for the minor child and for determining when and where the child spends time with each parent. For parents who conflict with each other, this is an absolute necessity.
To obtain a child custody order, a parent must file an action with the court for child custody. After filing the action, the other party must be served with the lawsuit and afforded the opportunity to respond. In custody actions, after filing, the parents are almost always required to attend a court ordered mediation in the hopes of resolving their differences and working out a custody schedule. Attorneys may be but are often not included in these mediations. If resolution is reached in mediation, an order dictating the custody arrangement and schedule will be issued by a judge, which resolves the matter.
In the event that the parties are unable to come to an agreement during mediation, and are unable to negotiate their custody schedule, they require a judge to determine their parenting schedule and end up in litigation. In litigation, the parties become adversaries and lose their ability to control and determine their parenting arrangement through negotiation. The conflict is resolved by the judge upon the presentation of evidence to determine what parenting arrangement is in the best interests of the minor child.
The primary issues to be determined by the judge are legal custody and physical custody. Legal custody concerns decision-making for the minor child. Where the child goes to school, the doctor, therapy, dentist, for example, include matters of legal custody. Physical custody, on the other hand, concerns where the child spends the night and how much time each parent is going to spend with the minor child.
Once a child custody order is issued, it is enforceable by the court through the power of contempt. What does this mean? Basically, in a nutshell, if a party violates the custody order, the court has the power to punish the violating party. The court may have a number of options in punishing the offending party including fines, probation, jail time, and attorney’s fees.
If you need to speak with a family law attorney concerning child custody issues, please contact Adkins Law to arrange a consultation.
North Carolina General Statute § 50-13.7 states that “[A]n order of a court of this State for custody of a minor child may be modified or vacated at any time, upon motion in the cause and a showing of changed circumstances by either party or anyone interested.”
NCGS 50-13.7 states that an order of a court of this State for custody of a minor child may be modified or vacated at any time, upon motion in the cause and a showing of changed circumstances by either party or anyone interested. In fact, the Court of Appeals has consistently held that “the trial court commit[s] reversible error by modifying child custody absent any finding of substantial change of circumstances affecting the welfare of the child.” Davis v. Davis, 748 S.E.2d 594 (N.C. App., 2013) (quoting Hibshman v. Hibshman, 212 N.C.App. 113, 121, 710 S.E.2d 438, 443 (2011)).
Importantly, a finding of contempt will not lead to a modification of custody or visitation. As stated by our Court of Appeals in in Woncik v. Woncik, child custody “cannot be used as a tool to punish an uncooperative parent.” Only when the Court concludes that the interference with visitation was itself a “changed circumstance” is there merit to modify custody and/or visitation. Our Court of Appeals has stated that “A decree of custody is entitled to such stability as would end the vicious litigation so often accompanying such contests, unless it be found that some change of circumstances has occurred affecting the welfare of the child so as to require modification of the order. To hold otherwise would invite constant litigation by a dissatisfied party so as to keep the involved child constantly torn between parents and in a resulting state of turmoil and insecurity. This in itself would destroy the paramount aim of the court, that is, that the welfare of the child be promoted and subserved.” (Davis v. Davis, 748 SE2d 594 (N.C. App 2013) citing Shepherd v. Shepherd, 273 N.C. 71, 75, 159 S.E.2d 357, 361 (1968)).
In Davis v. Davis, the trial court made findings that the parties had a dispute about the custodial schedule and Defendant lost his temper and inappropriately physically disciplined the minor child. The Court still found that there was not a substantial change of circumstances sufficient for the Court to grant Defendant’s motion to modify custody. (“The trial court did not find that defendant's “inappropriate [ ] discipline[ ]” of his daughter rose to the level of a substantial change in circumstances affecting the welfare of the children. The trial court also did not find that the scheduling disputes constitute a substantial change of circumstances. Therefore, the findings of fact and conclusions of law are insufficient to support its requirement that defendant obtain anger management counseling and its modifications of visitation. Accordingly, we vacate those portions of the trial court's order modifying visitation and ordering defendant to attend anger management classes and we reinstate the visitation schedule set out in the 2003 custody order.”) Davis v. Davis, 748 S.E.2d 594 (N.C. App., 2013).
Thus, it is not necessarily easy to modify an existing order for child custody. To do so, you have to prove that a substantial change of circumstances have occurred that impact the minor child, and that it is now in the child’s best interests to have the custody schedule changed. A court cannot modify a child custody order just because you are dealing with a difficult person. That person may be difficult with you, and at the same time be a great parent for the child.
If you have questions about modifying a child custody order and need to speak with an experienced child custody attorney, please click here to contact Adkins Law.
When does child support terminate in Mecklenburg County? Child support terminates in North Carolina when a child reaches eighteen years of age, except:
1. It stops sooner if the child is emancipated.
2. If a child is still in high school when the child reaches eighteen, child support payments continue until the child graduates, ceases to attend school on a regular basis, fails to make satisfactory academic progress towards graduation, or reaches age twenty, whichever comes first, unless the Court, in it’s discretion, orders that child support payments at age eighteen or prior to high school graduation.
If you have questions regarding child support or the termination of child support in Mecklenburg County, contact Adkins Law. We are located in Huntersville NC and serve the greater Charlotte area.