If you are considering separation and divorce, contact Adkins Law. Adkins Law has locations in Huntersville and Ballantyne for your convenience.
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You are legally separated from your spouse if you move out of the marital residence with the intent of remaining separate and apart. Once you remain separate and apart from your spouse for a year and a day, you are eligible to file for an absolute divorce. Once the absolute divorce is granted, all bonds of marriage are terminated between you and your spouse. If you need to speak to a family law attorney in regards to a separation and / or divorce, contact Adkins Law. Adkins Law has locations in Huntersville and south Charlotte. What is the difference in being legally separated and getting a divorce? When one spouse moves out of the marital home with the intent of remaining separate and apart, the couple is legally separated. In North Carolina, however, you must remain continuously separate and apart for a year and a day in order to file for a divorce. Once your divorce is granted, the bonds of matrimony are broken, and your marital status reverts to single. If you need to speak with a family law attorney in regards to seeking information on separation and divorce, contact Adkins Law. Adkins Law has locations in Huntersville and Ballantyne. 1) How long do we have to be separated before we can file for divorce in NC? Under North Carolina General Statute (N.C.G.S.) § 50-6 provides that either party may apply for divorce but only “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 (6) months.” 2) How long will divorce process take once the complaint is filed? It depends each county in North Carolina is different and has its own local rules and procedures when processing a complaint for absolute divorce. When the plaintiff files a complaint for absolute divorce, a defendant is entitled to 30 days to respond to the lawsuit. A defendant is may ask the Court for additional time in which to respond and in most cases a Court will allow a permit an additional 30 days for the defendant to respond to the complaint. If a defendant fails to respond to the complaint within 30 or 60 days if applicable, the plaintiff is entitled to proceed with their claim for absolute divorce. In Mecklenburg County, unlike some other counties, no court appearance will be required by either party for a Court to enter a judgment of absolute divorce. 3) What factors does the court look at in determining alimony? Under N.C.G.S. § 50-16.3A(a), “the court shall award alimony to the dependent spouse...upon a finding that the other spouse is the supporting spouse, and that an award of alimony is equitable after considering all relevant factors, including those set out in subsection (b) of this section.” N.C.G.S. § 50-16.3A(b) “In determining the amount, duration, and manner of payment of alimony, the court shall consider all relevant factors, including: (1) The marital misconduct of either of the spouses. [The court will consider all evidence of martial misconduct that has occurred during the marriage and prior to the date of separation.]; (2) The relative earnings and earning capacities of the spouses; (3) The ages and the physical, mental, and emotional conditions of the spouses; (4) The amount and sources of earned and unearned income of both spouses, including, but not limited to, earnings, dividends, and benefits such as medical, retirement, insurance, social security, or others; (5) The duration of the marriage; (6) The contribution by one spouse to the education, training, or increased earning power of the other spouse; (7) 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; (8) The standard of living of the spouses established during the marriage; (9) 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; (10) The relative assets and liabilities of the spouses and the relative debt service requirements of the spouses, including legal obligations of support; (11) The property brought to the marriage by either spouse; (12) The contribution of a spouse as homemaker; (13) The relative needs of the spouses; (14) The federal, State, and local tax ramifications of the alimony award; (15) Any other factor relating to the economic circumstances of the parties that the court finds to be just and proper. (16) 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.” 4) What if I am military and live out of state? Can our divorce still be filed in NC? Yes, as long as one party resides in North Carolina for six months. The divorce will have to be filed in the county the NC resident resides in. 5) Is spousal support available while divorce is pending in court or only after the divorce has become final? It is up to the court to order that one spouse provide support to the other during the pendency of the divorce action and/or after the divorce has become final. Also, support that is awarded pending the final decree of divorce is not to extend beyond the period necessary for the prosecution of the divorce action. 6) When is considered to be abandonment by spouse? Abandonment occurs when a spouse intentionally moves out of the martial home with the intent to remain permanently apart without the consent of the other spouse, and without provocation by the other spouse. 7) Is your spouse entitled to alimony if they cheated on you? No. Under N.C.G.S. § 50-16.3A(a) provides that a spouse that is found dependent by the court is not entitled to alimony if he or she has had sexual relations with another person that is not their spouse at any time prior to the date of separation. 8) What if my spouse does not agree to the divorce, can I still go forward with the divorce? Yes. You can obtain a divorce decree whether your spouse agrees with it or not, as long as you and your spouse have been separated for one-year and one of you has been a resident of North Carolina for six-months prior to the filing of this divorce action. 9) What are the types of divorce that NC recognizes? North Carolina is a “no-fault” state which means that neither party has to prove fault of the other in order to file or be granted a divorce decree, you are only required to be separated for one-year and one of the spouses must have resided in NC for six-months prior to filing for divorce. Further, North Carolina recognizes two types of divorces: (1) “absolute divorce” and (2) “divorce from bed and board.” (1) “Absolute divorce” is like a no-fault divorce, either party can obtain, once you and your spouse have lived separate and apart for one-year. (2) “Divorce from bed and board” is not technically a divorce but rather a judicially authorized legal separation. There are six grounds for this type of divorce based on injury to the party filing for divorce as provided under N.C.G.S. § 50-7. “The court may grant divorces from the bed and board on application of the party injured…in the following cases if either party: (1) Abandons his or her family, or (2) Maliciously turns on the other out of doors. (3) By cruel or barbarous treatment endangers the life of the other. In addition, the court may grant the victim of such treatment the remedies available under N.C.G.S. § 50B-1. (4) Offers such indignities to their spouse as to render the condition his or her condition intolerable and life burdensome. (5) Becomes an excessive user of alcohol or drugs so as to render the condition of the other spouse intolerable and the life of the spouse burdensome. (6) Commits adultery.” [NCGS § 50-7] 10) Does North Carolina recognize common law marriage? No, North Carolina does not recognize common law marriage. If, however, you moved to North Carolina from a state recognizing common law marriage, you still may need to file for an absolute divorce. If you need to arrange a consultation with a family law attorney concerning separation and/or divorce, contact Adkins Law. We have locations in Huntersville and Ballantyne for your convenience. Many couples make the choice to live together before getting married. If you are planning to buy a house with your partner, ideally you should both sign a joint home ownership agreement. After all, this is one of the largest investments you will ever make. If things don’t work out you don’t want to rely on a verbal agreement. If you are living in a house that you bought as a couple and split up, what happens to the house? In most states, if both names are on the deed, the presumption is that you are equal partners unless you have signed some other agreement. Of course, life isn’t usually that simple. Sometimes only one person contributes to the down payment or one partner may have contributed a much larger share than the other. Or perhaps one partner has invested a disproportionate share of time and money in home improvements. Another possibility is that only one name is on the deed but both have contributed to the mortgage payments and improvements. Now what? If you have a joint ownership agreement, the process will be much simpler because you have agreed in writing how those issues will be addressed. If not, one possibility is to value each partner’s contribution in terms of down payment, improvements, mortgage payments, etc. and then use those figures to determine the ownership percentage of each partner. You may need to enlist the advice of a real estate professional and or a mediator if you disagree about the value of home improvements, market value, etc. Once the ownership ratios are established, the next step is to decide whether you will sell the property to a third party or if one of the partners will be staying and buying out the other’s interest. It will be less costly if one partner buys out the other’s share because you avoid all the costs associated with selling a house, particularly, real estate commissions. Often, the amount of the real estate commission will be deducted from the market value of the house even if there isn’t a third party sale. Another deduction might be made for any deferred maintenance costs. The market value less the commissions and deferred maintenance costs will then be allocated according to the ownership shares of each partner. If you need to speak with a family law attorney regarding a joint home ownership agreement, contact Adkins Law. We have locations in Huntersville and Ballantyne for your convenience. BE PROACTIVE If you are considering a divorce you will want to be proactive and make sure you are taking the right steps to ensure a positive outcome. Contacting an attorney is a good first step. Your attorney may recommend that you seek marriage counseling even if you don’t think your marriage can be saved. A divorce is a major life event and a counselor can help you navigate the emotional ups and downs you will likely experience. Your attorney will discuss the laws specific to your state and the steps that you should take to ensure the most favorable outcome to your divorce proceeding. STAY IN YOUR HOME Until you speak with an attorney, you should not move out of your home unless it is an abusive situation. In situations of abuse, you should always put the safety of you and your children first. Leaving your home without reason, could be considered abandonment and could jeopardize spousal claims for support. In NC, abandonment means that a spouse has moved out with the intent to cease co-habitation. Abandonment can also impact the custodial rights of the abandoning spouse. By leaving the children with your ex, you are essentially saying that they are capable and fit to raise the children. In addition, if you leave, you may be unable to return to the house until the property has been divided which could take a year or even more in some cases. SAFEGUARD YOUR ASSETS An attorney can guide you on how to best protect your assets. You will want to take possession of certain types of assets like cash, collectibles, jewelry, etc. that your spouse might try to liquidate. Your attorney might also suggest closing joint bank accounts and credit cards. NC DIVORCE LAW Some states are “Fault” states meaning that the judge will consider the actions of the “guilty” spouse to determine if there are grounds for divorce. In “No Fault” divorce states the judge does not consider the actions of the spouses. All that is required is that one party wishes to end the marriage. NC is a hybrid state – judges can consider marital misconduct or “incurable insanity” but can also dissolve a marriage if one spouse has determined the marriage can’t be saved. WHAT TO EXPECT A No-Fault divorce in NC requires two things. First, you must live separate and apart from your spouse for one full uninterrupted year. Second, at least one of you must have lived in NC for the six month period prior to filing the divorce papers. Adkins Law has offices in Huntersville and Ballantyne. If you need to schedule an appointment to meet with a divorce attorney, contact Adkins Law. The North Carolina Court of Appeals addressed the issue of retroactive child support in the case of Loosvelt v. Brown, on July 15, 2014. Mr. Loosvelt, brought a lawsuit against Ms. Brown for child custody and to establish child support obligation. Ms. Brown then brought counterclaims including one for retroactive child support. The trial court awarded over $7,000 per month in child support along with around $40,000 in retroactive child support including in excess of $5,000 in pre-birth nursery expenses and maternity clothes. The Court of Appeals addressed the issue retroactive child support and clarified the law on the expenses that can be recovered before a child’s birth. The court held that "as the legal obligation arises when the child is born, expenses incurred prior to the child's birth cannot be considered as retroactive child support. The only exception to this is in the North Carolina General Statute §49-15 which allows for "medical expenses incident to the pregnancy and birth of the child." Furthermore, a parent may seek retroactive child support for child support prior to filing the complaint. The Statute of Limitations does limit (NCGS § 1-52(2)) limits a parent to know no more than three years of retroactive support. The parent seeking retroactive child support must present evidence of past expenditures made on behalf of the child that were reasonably necessary. If you are filing an action for child support, be sure to talk with an attorney about making a claim of retroactive child support. Adkins Law has locations in Huntersville and Ballantyne. Contact Adkins Law to arrange a consultation to discuss your family law, traffic, or estate planning legal needs. |
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