SEPARATION, DIVORCE, AND GENERAL QUESTIONS
Q. Can my spouse and I use the same divorce attorney?
A. No - Spouses who are in the process of separation or divorce have competing interests, so an attorney is prohibited by the North Carolina State Bar from representing both of you, including in the negotiation or preparation of a separation agreement. If your spouse presents you with a separation agreement or any other type of legal document, you should have your own attorney review it to ensure that you fully understand the legal ramifications. You and your spouse can choose an attorney to serve as mediator in your case.
Q. Do I need a separation agreement or court order to be legally separated from my spouse?
A. No - Under North Carolina Law, parties are considered "legally separated" when they begin to live separate and apart from each other (in separate residences) with the intention on the part of at least one of the parties to end the marital relationship.
Q. Can my spouse and I resolve issues related to our divorce without filing a lawsuit?
A. A lawsuit must be filed to obtain the actual divorce, known as an “absolute divorce,” but all other issues arising from your marital separation can be resolved outside of court. Additionally, it may be necessary to file a legal action to give a court jurisdiction to enter a special order that is required to divide pension and retirement accounts.
Q. Can I make my spouse sign a separation agreement?
A. No - A separation agreement must be signed by both spouses, freely and voluntarily, without undue influence or duress.
Q. Why is the date of separation important?
A. In North Carolina, parties must be separated for one full year before they are eligible to file an action for absolute divorce. Therefore, the date of separation establishes the earliest date that an action for absolute divorce can be filed. Additionally, all marital assets and debts must be valued as of the parties’ date of the separation for purposes of equitable distribution.
Q. If my estranged spouse and I engage in sexual relations, will it restart our date of separation?
A. No - An isolated incident of sexual relations between parties who are separated will not invalidate their date of separation. However, if the parties resumed their marital relationship, as determined by a totality of the circumstances, the date of separation will be determined by the date of the parties’ last separation.
Q. Can I force my spouse to move out of the marital home?
A. The easiest way to facilitate a marital separation is for one party to voluntarily move out of the marital home. If neither party is willing to vacate the home, then a party can file a legal action seeking a “divorce from bed and board” when there have been certain acts of misconduct on the part of the other spouse. The court can conduct a hearing on the matter, and if the judge finds that the “offending” party has committed such wrongful acts against the “injured” party, then the court can require the offending party to vacate the marital home.
Q. How long will my divorce take?
A. If there are no contested issues related to the absolute divorce, such as a disagreement over the date of separation, and both parties are cooperative in the process, a divorce can usually be obtained within 45 to 60 days from the date of filing of the divorce complaint.
Q. Does Siemens Family Law Group offer telephone consultations?
A. In limited situations, our attorneys may provide telephone consultations for potential clients. We do not offer free consultations. Therefore, payment by credit or debit card must be made prior to the telephone consultation.
CHILD CUSTODY AND CHILD SUPPORT
Q. How is child support determined?
A. The North Carolina Child Support Guidelines provide a formula for determining the presumptive basic child support obligation for parties whose combined adjusted gross income does not exceed $300,000 per year ($25,000 per month). The guidelines are designed to consider certain relevant factors including work related child care expenses, health insurance paid on behalf of the child, and whether either parent is legally responsible for the support of other children. In cases where the parties’ combined income exceeds $300,000 per year, the parties can either reach an agreement on child support outside of court, or the court must conduct a hearing to determine child support based on the facts and circumstances of the case at hand. There are also circumstances other than high income in which a party may request a deviation from the child support guidelines.
Q. How is child custody determined under North Carolina Law?
A. When parents have disagreements over child custody and visitation and a legal action is initiated, the parties must attend mandatory parenting classes and mediation. If the parents are able to reach a custody agreement at mediation, the agreement can be submitted for approval by a judge and adopted as a court order. If the parties are unable to negotiate a custody agreement in mediation, then the court can schedule the matter for trial before a family court judge. North Carolina judges determine custody by applying the standard of “the best interests of the child.”
Q. What is the difference between “legal custody” and “physical custody”?
A. Legal custody refers to a parent’s right to make decisions on behalf of a child, including those that pertain to the child’s health, education, discipline, and spiritual training. The parents may have joint legal custody in which they must jointly make major child-related decisions together, or one parent may be awarded sole legal custody which allows this parent alone to make major decisions on behalf of the child. Physical custody refers to where the child (or children) resides and how much time the child spends in the physical care of each parent.
Q. Can I make the other party pay my attorney fees in connection with my claims for child custody and child support?
A. North Carolina courts have authority to award attorney fees in child custody and child support actions. Therefore, you may be ordered to pay the other party’s attorney fees, or the other party may be ordered to pay your attorney fees. Although we will request an award of attorney fees on behalf of our clients when it is appropriate, judges have wide discretion in determining whether or not to award attorney fees and the amount to be awarded.
Q. If the other parent doesn’t pay child support, can I prevent him or her from exercising visitation with the child?
A. No - Under North Carolina law, child support and child custody are two separate legal issues. A parent’s failure or refusal to pay child support is not a basis for the other parent to deny visitation privileges.
SPOUSAL SUPPORT: POST-SEPARATION SUPPORT AND ALIMONY
Q. How does a judge determine if one party is entitled to receive (or the other party must pay) alimony?
A. A judge must find that one spouse is a “dependent spouse,” and the other spouse is a “supporting spouse” who has the ability to pay alimony. The judge will then consider the statutory factors and other relevant circumstances to determine whether an award of alimony is equitable.
Q. How does a judge determine whether a spouse is a “dependent spouse?”
A. A dependent spouse is defined as one who is actually and substantially dependent upon the other spouse for his/her maintenance and support OR who is actually substantially in need of support from the other spouse. In determining a spouse’s need for maintenance and support from the other spouse, a determination must be made as to whether or not the spouse seeking support has sufficient resources to meet his or her own reasonable needs and expenses in accordance with the standard of living established during the parties’ marriage.
Q. Is my estranged spouse required to pay attorney fees in connection with my claims for post-separation support and/or alimony?
A. If the court finds that a dependent spouse is eligible to receive post-separation support or alimony, then upon request of such spouse, the court may enter an order requiring the supporting spouse to pay the dependent spouse’s reasonable attorney fees. A judge has discretion to determine whether to award attorney fees, and the amount of attorney fees that should be awarded.
Q. What does “equitable distribution” mean?
A. North Carolina uses the term “equitable distribution” to describe the process of equitably dividing the net marital and divisible estate between two spouses who have separated or are beginning the process of divorce.
Q. Do North Carolina courts distribute marital and divisible property equally?
A. There is a presumption that the net marital and divisible estate should be distributed equally between the parties. However, equitably does not mean equal; it means fairly. As such, there are certain factors that the court can consider in justifying an unequal division of marital property and debts.
Q. Is my spouse entitled to receive any of my retirement account or pension if we get divorced?
A. Any portion of your retirement account or pension plan that was acquired during the marriage is presumed to be marital property that is subject to division between you and your spouse as part of the equitable distribution process.
Q. Why do I have to supply my attorney with so much personal and financial information and documentation?
A. Your attorney must have adequate information and documentation to support or defend legal claims asserted by you or the opposing party, and to investigate claims and allegations asserted by either party. We understand that the volume of documents that are required in many cases can be overwhelming, particularly for those who are organizationally challenged. However, these documents are crucial to the outcome of your case and the results we are able to obtain on your behalf. For example, documents provided by you or the opposing party may enable your attorney to discover undisclosed assets, such as a spouse’s paycheck that was earned during the marriage but deposited the day after the separation and which should be included in the marital estate. It is also critically important for your attorney to have information and supporting documentation of each party’s income and expenses in connection with claims for spousal support and child support.
Q. Does Siemens Family Law Group represent clients throughout Western North Carolina?
A. Our attorneys typically limit representation to clients who have cases that fall within the jurisdiction of Buncombe County, North Carolina. However, we have extensive experience representing clients who are involved in high net worth divorce cases, and those involving novel or complex legal issues. If you are interested in our services, please contact our office. If we cannot be of assistance to you, we can recommend an attorney in your county, or another Buncombe County attorney who represents clients in other areas.
* This article is for information purposes only and should not be relied upon or substituted as legal advice. This article is based on North Carolina law in effect at the time of posting and represents the opinions of Siemens Family Law Group. This article does not create a client-attorney relationship.
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