NC Family Law Summary


SUMMARY OF NORTH CAROLINA FAMILY LAW

American Academy of Matrimonial Lawyers

North Carolina Chapter

INTRODUCTION

The Fellows of the American Academy of Matrimonial Lawyers are recognized by the bench and bar as leading practitioners in the area of family law within their respective states.  To be chosen as a Fellow of the Academy, a North Carolina State Bar Board Certified Specialist in Family Law must meet additional rigorous requirements of the national AAML, displaying exceptional competence and experience in this area of the law.  In 2012, of the approximate 1600 AAML Fellows in the 50 states, 33 were North Carolina lawyers.  At least 75% of each Fellow’s practice over the preceding 10 years must be devoted to family law.  All of the Fellows are required to attend continuing legal education courses each year and many of them teach these courses.  Fellows of the North Carolina AAML have been on the forefront in the development of family law in North Carolina for decades.  

Learning about family law in North Carolina and how it might be relevant to your situation can be overwhelming, even after meeting with your lawyer.  The North Carolina Fellows thought you might find an overview of family law in North Carolina to be helpful.  A general familiarity with the issues and terms of family law might prepare you for your initial consultation with an attorney.  Additionally, a summary of the law might help you consolidate some of the information that you receive during the consultation with your lawyer.  Our goal is to help you make informed decisions in your partnership with your attorney. 

Family laws differ from state to state.  The United States Constitution permits the various states to adopt their own laws with limited federal interference.  Family law is an area in which the federal government can have little involvement, so there is little uniformity from state to state.  A person interested in determining how a state's laws might determine the outcome of his or her particular case must examine the laws of the state that has jurisdiction over the both subject-matter of the case and of the individual parties.   Only an attorney licensed to practice in that specific state will be able to provide that information with any degree of reliability. 

Every case is different.  Small and seemingly insignificant details can make a tremendous difference in the outcome of a case.  Relying upon the advice of well-meaning family and friends can be very risky.  Consulting with a family law specialist in the appropriate state before you make any decisions or take any actions is almost always the best strategy, and one that will often leave you with more options.  Just because you consult with an attorney does not mean that you must take some action right away but you should know your options as well as what to do and what not to do.  State district court judges are given wide discretion in addressing many family law issues and different judicial districts within the state often have their own unique procedural rules.   A North Carolina Family Law Specialist is the person who can best navigate you through these often treacherous shoals.

This Summary of North Carolina Family Law is intended to provide a general overview of the principles of family law in our state.  It is not intended as a substitute for a consultation with an experienced North Carolina family specialist. 

INITIAL CONSULTATION

Qualified family law attorneys can be located in a number of ways.  The North Carolina Fellows of the American Academy of Matrimonial Lawyers can be identified at nc.aaml.org.  Fellows in all of the states can be found at www.aaml.org.  North Carolina State Bar Specialists in Family Law can be located at www.nclawspecialists.gov.  Regardless of how you identify a potential attorney, you should go to one of these websites as well as that attorney’s law firm website, to learn more about his or her background and experience.

The initial consultation process will begin with your phone call to the attorney’s office to make an appointment.  Do not be surprised if you are unable to speak with the attorney during this initial telephone contact.  The Rules of Professional Conduct of the North Carolina State Bar  require each attorney to check law firm records to make sure that he or she has not spoken with your spouse or some other potential opposing party previously.  Depending upon the circumstances of any such prior contact, the attorney may be in a conflict of interest position and unable to represent, or even talk with you.  The attorney’s assistant will likely collect the necessary information from you, check the conflicts records, and confirm your appointment, provided that there is no apparent conflict of interest.  The assistant should also advise you of the fee for the initial consultation.

You should not be concerned about bringing documents to this initial consultation, unless you are directed to do so by the attorney’s assistant.  One of the primary purposes of your initial consultation is for you to determine, and for the attorney to determine, whether the representation makes sense, if the attorney is competent and capable of handling your case, and both you and the attorney are comfortable with each other.

When dealing with the financial issues of divorce, documentation is extremely important and you should expect to receive a homework assignment from the attorney following your initial consultation, if you are in a position to proceed with matter.  Since each case is different, the attorney must be the one to provide that list of documents to you.  If financial issues are to be addressed and you wish to bring some documents to this initial session with the attorney, the last three years of income tax returns and a financial statement showing your assets and liabilities might be helpful.   Typically, the attorney will begin the initial consultation with an interview to collect relevant information to enable him or her to understand your situation and goals.  Once that information is collected, the attorney will analyze your case and describe to you how the law will address your specific situation and help or hinder you in reaching your goals.  Income, asset and liability information will be critical in this analysis if financial issues are to be addressed.

The initial consultation is the time that you will want to ask a number of questions concerning the representation, if the attorney does not address your questions.  What is the attorney’s hourly rate and that of the staff?  What is the required retainer or advance trust account deposit?  Will all of this be memorialized in a written fee agreement?  How often will I be invoiced and will the invoices explain the work that has been done on my case?  Will I have to engage the services of other professionals such as private investigators, accountants, and business valuators?  How much do they cost?  Can my spouse be made to pay any of these fees and expenses?  How is your office staffed and will I be talking with you, associate attorneys or paralegals, most of the time?  How long will it take to get this matter before a judge if that becomes necessary?  When I want to contact you, is it best to use e-mail or the telephone?

Hopefully, by the end of the initial consultation you and the attorney will have a good idea of whether the representation is a good fit.  If your comfort level with an attorney is not what you want expected, you may wish to interview other attorneys.

LEGAL ISSUES IN DIVORCE

The dissolution of a marriage is one of life's most traumatic events.  This Summary is designed to address some topics that may be of concern to you.  We hope that it will provide you with some clarity to the process.  This Summary should generate many specific questions for you to discuss with your attorney.  Ask those questions and keep asking them until you are satisfied that you understand the answers and are in a position to make informed decisions.

There are six basic causes of action that grow out of the dissolution of a marriage in which there are children and four basic causes of action in a marriage without children.  For purposes of this discussion, these actions are classified as follows:

With the exception of the absolute divorce, resolution of these issues can be achieved by agreement at any time.  To obtain the absolute divorce, a simple lawsuit and court hearing are necessary.  If the other issues cannot be resolved by agreement, each issue can be pursued in a separate lawsuit; however, one or more of these actions are usually combined into one lawsuit.

You may have heard of two other causes of action in North Carolina called “alienation of affections” and “criminal conversation.”  These are unique tort, or private wrong, lawsuits that are often related to the basic causes of action listed above.  They will be addressed later in this Summary.

NORTH CAROLINA FAMILY LAW GLOSSARY

  • Absolute Divorce:  The court judgment that legal ends the marriage.  It can only be obtained from a judged and only after certain legal requirements have been met, including living separate and apart for one year without resuming the marital relationship.  Remarriage is legally impossible until an absolute divorce judgment has been entered.
  • Alienation of Affections:  This is a civil action (non-criminal) that a spouse brings against someone other than the spouse for breaking up the marriage.  The boyfriend or girlfriend of the other spouse is usually the defendant in these lawsuits. 
  • Alternative Dispute Resolution:  These are various methods for resolving disputed issues out of court.  The most common is mediation, which is defined below.  Arbitration (also defined below) is another ADR methodology.
  • Alimony:  Alimony is financial support provided to a spouse or a former spouse.
  • Annulment:  An annulment is a remedy to set aside a marriage based upon certain very limited legal grounds.
  • Answer:  The pleading in which the defendant responds to the allegations made in the plaintiff's complaint that initiates the lawsuit. 
  • Arbitration:  The process by which parties agree to resolve their disputes out of court, using the services of an experienced third party arbitrator.  An arbitrator is given the authority to decide specified issues in dispute by the parties’ contract.    The parties simply agree to be bound by the arbitrator’s decision.
  • Child Support Guidelines: In child support cases in which the combined annual pre-tax incomes of the parents do not exceed $300,000, a court is likely to refer to a table of child support numbers called the North Carolina Child Support Guidelines.  The Guidelines are based upon national Bureau of Labor Statistic and Department of Agriculture studies of how much money families as various combined income levels typically spend on between one and six children.  These child support figures are presumptive but the court has the authority to deviate from these Guidelines under certain circumstances. 
  • Cohabitation: 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 upon, sexual relations. Cohabitation may be relevant to the issue of alimony entitlement.
  • Complaint:  The pleading filed by the plaintiff initiating a lawsuit. It is a request for relief from the court, and sets out the issues the plaintiff wants the court to resolve.
  • Consent Order: An agreement of the parties that is memorialized as a court order, bearing the signature of a judge.  Attorneys for the parties will determine the best instrument or instruments for recording the settlement terms.  Some agreements are memorialized by consent orders, and some by contracts (often called “Separation and Property Settlement Agreements), and some with both.  Modifiability and enforceability are two considerations in selecting the appropriate instrument to record the terms of any settlement. 
  • Counterclaim:  The pleading in which the defendant requests relief against the plaintiff.  It functions as the defendant's complaint against the plaintiff in the same lawsuit brought by the plaintiff.
  • Criminal Conversation:  This is a civil (non-criminal) action that a spouse brings against the girlfriend or boyfriend of the other spouse for having sexual relations with that other spouse prior to the separation of the spouses.
  • Dependent Spouse:  The spouse who is determined to either be actually substantially dependent on the other spouse for financial support or substantially in need of financial support from the other spouse to maintain a certain pre-separation lifestyle.  This definition is relevant for postseparation support and alimony.
  • Divisible Property:  Property that must be divided pursuant to an equitable distribution claim and that is the product of post-separation changes in value to marital property.  Divisible property includes passive increases and decreases in the fair market value of marital property after the date of separation.  It also includes passive additions to the value of a marital asset after the date of separation, such as interest and dividend income.  It also includes any property received after the date of separation which a party had a right to receive before the separation and which was acquired as the result of efforts of either or both parties during the marriage.  Increases in marital debts related to financing charges and interest accrued since the date of separation are divisible property.
  • Divorce from Bed and Board:  A court-ordered separation.  This marital fault-based claim may permit a court to grant exclusive possession of the marital residence to one party, under certain limited circumstances.  A divorce from bed and board terminates the automatic marital inheritance rights that otherwise would not end until the sooner of the absolute divorce judgment or a written settlement between the parties.
  • Equitable Distribution:  The law of North Carolina that sets out the rules and procedures for classifying, valuing and distributing marital and divisible property and debts.
  • 50-B:  The chapter of the North Carolina General Statutes that provides for certain domestic violence relief.  “50-B” is a shorthand reference to these laws.  50-B actions provide expedited relief to protect spouses, children and other people in personal relationships who have experienced violence or are facing the prospect of violence.
  • Joint Custody:  This term may refer to shared decision making or shared residential arrangements. “Joint legal custody” involves a common joint decision-making arrangement whereby the parents are required to consult with each other on major issues involving the children.  "Joint physical custody" is defined in the North Carolina Child Support Guidelines as a residential schedule with each parent having the children reside with him and her for more than 122 nights (one-third) per year.
  • Judgment:  A final written decision of the court regarding the litigated issues, properly signed by the judge and filed with the court records.
  • Jurisdiction:  The authority of a specific court within a specific state to hear a action between or among specific people. If the court does not have jurisdiction, the action cannot proceed.  A court must have jurisdiction over both the subject matter and the parties themselves.  Parties may not agree to jurisdiction if it does not otherwise exist.  
  • Litigation:  A court action and the use of the court system to determine the outcome of contested issues.   It is started with a complaint filed by a plaintiff and the issues are framed by the, complaint, answer, counterclaim and reply.
  • Local Rules of Various Judicial Districts:  The State of North Carolina is divided into judicial districts.  Some districts include only one county while other districts include several counties.  Many of these districts have adopted their own local procedural rules for handling cases.  While these local rules may not contradict state law, a litigant running afoul of a unique local filing deadline or using the wrong local form, may have his or her case dismissed or be disadvantaged in other ways in the presentation of the case. It is critical that your attorney know the local rules for the judicial district which is the proper venue for your case.
  • Marital Property:  As defined by the North Carolina Equitable Distribution statute, this is property acquired during the marriage through the efforts of one or both spouses, between the date of marriage and that date of separation, excluding gifts and inheritances received by one party from someone other than the spouse.
  • Marital Misconduct:  Behavior during the marriage that may later influence a court's decision regarding postseparation support, alimony and divorce from bed and board.  Marital misconduct includes physical or financial abandonment, turning the other spouse out of the marital residence, indignities, excessive drinking or drug use, waste of money, adultery, and cruel or barbarous treatment.    
  • Mediation:  The process by which parties attempt to resolve a dispute outside of the court system, through a negotiation-styled settlement conference with the assistance of a third-party settlement facilitator.  Unlike an arbitrator or a judge, the mediator has no authority and if the parties fail to reach a settlement, the parties may proceed to trial.
  • Order:  A written directive of the court.  An order is similar to a judgment except that it does not finally dispose of the entire case.
  • Postseparation Support:  Spousal support paid either until a specific date set forth in a court order or until an order is entered either awarding or denying alimony, whichever occurs first. This cause of action was designed primarily as a temporary measure to insure that bills are paid and food is put on the table until the final property and support issues are addressed.
  • Domestic Relations Order (DRO):  This is an order required by the Internal Revenue Service when dividing assets in certain types of retirement plans to avoid adverse tax consequences.  While DRO’s are required for IRA plans, a qualified domestic relations order (QDRO) is used for 401(k) plans.  Different rules apply to different types of plans.
  • Separate Property:  As defined by the North Carolina Equitable Distribution statute, this is property that belongs to one party and is not subject to division by an equitable distribution court.  Generally, this is property that a party owned prior to marriage, acquired after the parties separated with separate funds, or acquired as a gift or inheritance from someone other than the spouse, at any time.  Debts are classified as separate if they were incurred prior to the marriage, after the date of separation, or at anytime for a non-marital purpose.
  • Separation:  A physical residential relocation of one spouse with the intent on the part of at least one of the spouses for the separation to be permanent.
  • Service:  The delivery to the opposing party of a pleading or order concerning the lawsuit.  Proper service is essential if a party is to obtain personal jurisdiction over a party to be able to proceed with a lawsuit.
  • Separation Agreement and Property Settlement:  A written contract memorializing terms to which the parties have agreed.  A case may be resolved with one or more such contracts.  Unless the contract specifically provides that it is to be incorporated into a court order or judgment, there is no requirement that a contract be reviewed by a judge.  Except for some limited circumstances, there is no requirement that a contract be recorded on the public records. Sometimes a recording of a contract with the Register of Deeds is required if real estate transactions are to take place prior to the parties’ absolute divorce.
  • Summons:  A document notifying a party of a court action and requiring that a party respond within a certain time period.  It is issued by the Clerk of Superior Court and typically served along with the complaint initiating a lawsuit.  It must be received by the named defendant through one of several accepted procedures for service of process.   
  • Supporting Spouse:  The spouse upon whom the other spouse is actually substantially dependent for financial maintenance and support or from whom such spouse is substantially in need of financial maintenance and support.  This definition is relevant for postseparation support and alimony.
  • Venue:  The appropriate judicial district within the state of North Carolina for the lawsuit to be filed.

LITIGATION

The first step in a lawsuit is the filing of a complaint.  The complaint is the document in which the plaintiff tells the defendant the purpose and the basis for the lawsuit.

After the complaint is filed, the defendant must formally be served with a copy of the complaint.  If the defendant has an attorney, the plaintiff's attorney may elect to give the defendant an opportunity to accept service voluntarily.   If the defendant will not agree to accept service, the law provides the plaintiff with other means to accomplish service, even in instances when the defendant cannot be located.

The defendant has thirty days from the date of service of the complaint to serve an answer.  The defendant is entitled to an automatic thirty day extension of time to file an answer but he or she must request the extension from the Clerk of Superior Court.   

The defendant may raise new issues in the same lawsuit by filing a counterclaim, that is contained in the same pleading as the answer.  If the defendant files a counterclaim, the plaintiff must serve a reply within thirty days (or sixty days if an additional thirty day extension is granted).

A case will be contested and a trial necessary unless both parties agree on all disputed issues, including  child custody, child support, postseparation support, alimony, property division, payment of debts, attorney fees and other expenses of litigation.  Even after the complaint is filed, some or all of the issues raised in the pleadings may be resolved by agreement.  A lawsuit is not always necessary.  Most cases are resolved by agreement, either before or after a lawsuit is filed.

 

INTERIM RELIEF

If a party becomes abusive, or refuses to provide reasonable support or to provide relevant information concerning income, assets and liabilities, a judge will hear evidence and determine whether some type of interim relief is appropriate.  It may be possible for a party to obtain an interim allocation of marital property under certain circumstances. Depending on the nature of the case, the court may require both parties to file sworn financial statements of earnings, expenses, assets and liabilities to assist in the compilation of critical information from which the judge will reach a decision.

CHILD CUSTODY AND SUPPORT

Child Custody

The magic words in North Carolina in child custody cases are "best interest of the child."  After hearing evidence, a judge (not a jury) will decide how the parents, individually or jointly, will make major decisions affecting the children's lives and will establish an appropriate residential schedule for the children.  "Joint custody" is the term used to describe a joint decision-making arrangement whereby both parents make major decisions for the children collaboratively.   Oftentimes, one parent will be designated as having primary physical custody with the other parent having secondary physical custody.  This designation is usually accompanied by a residential schedule for the children, with the primary physical custodial parent having the children more overnights than the parent with secondary physical custody.  Sometimes the residential schedule for the children provides for an equal or almost equal division of the overnights with the children.  There is no presumptive residential schedule, however, and courts welcome mutually agreeable residential arrangements. 

If a custody action is filed, the parties may be required to participate in mediation with a trained professional mediator before the case is placed on a trial docket.  The mediator, while having no authority to impose a custody arrangement, will attempt to facilitate an agreement between the parties.  If an agreement is reached in mediation, it will be reduced to writing and entered by the court as an order after the parties are given an opportunity to review the written agreement with their respective attorneys.

Child Support

In almost every case, one parent will be ordered to provide monthly child support payments to the other parent.  The court will likely calculate child support using the North Carolina Child Support Guidelines, if the combined pretax annual incomes of both parents total $300,000 or less.  Although the parents must file financial affidavits of expenses for themselves and for the children, the Guidelines are based on the gross incomes of the parties and the number of nights that the children spend with each parent.  A judge is permitted to deviate from the Guideline amounts, but only if extraordinary circumstances warrant such a deviation.  Judges without juries hear child support cases.

It should be noted that any child support obligation continues until the child reaches the age of 18 unless the child is legally emancipated.  Emancipation is a rare legal status that must be obtained by a minor through a separate court procedure, in which the child must establish economic self-sufficiency. 

If the child is attending primary or secondary school when he or she reaches age 18, the court will order support payments to continue until graduation unless the child otherwise ceases to attend school on a regular basis, or reaches age 20, whichever occurs first.  A parent may agree to pay child support beyond these time periods but, absent such an agreement between the parents, the court does not have the authority to require a parent to pay for a child's college education.  A court does not have the authority to require a parent to maintain life insurance for the benefit of a child.

Change of Circumstances

Both child custody and child support are issues that can be raised for the first time or modified at any time prior to a child reaching the age limits described in the preceding paragraph.  Either parent can petition the court to change its prior order of custody or support based on a showing that circumstances affecting the child have changed.  Small changes of circumstances will not warrant such a modification.

Tax Consequences

Unlike postseparation support and alimony, child support is not taxable as income to the recipient parent and is not a tax deduction to the payor parent.  Now that this statement has been made in this Summary, Treasury Department Circular 230 Disclosure, requires that we make this statement:  We must inform you that any U.S. federal tax advice contained in this Summary is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.

POSTSEPARATION SUPPORT

Postseparation support can be thought of as temporary alimony.  The emphasis of postseparation support is economic need rather than marital fault.  If a dependent spouse can show economic need, a court has the authority to order some amount of postseparation support either for a specific period of time or until an alimony determination is made.  Postseparation support is designed to provide either short-term spousal support with no alimony or interim spousal support until a full alimony trial can be conducted.
 

ALIMONY

A dependent spouse may elect to forego postseparation support altogether and proceed directly to an alimony trial.  If either spouse is dissatisfied with a postseparation support award, that party can initiate an alimony trial as soon as it can be scheduled with the court.

The amount of alimony and the issue of a party's dependency can be reviewed upon the motion of either party after the marital property is divided even if there has been a prior alimony determination.  For that reason, it is often most economical for the alimony issue to be heard either after or in conjunction with the equitable distribution issues.  Just as with postseparation support, a court is not required to find marital fault to make an alimony award. 

Factors

Once a spouse is determined to be financially dependant upon the other spouse, the court must consider any evidence offered by either spouse on the following factors, which may be relevant to amount, duration and manner of payment of alimony:

  • The marital misconduct of either of the spouses.  Nothing herein shall prevent a court from considering incidents of post date-of-separation marital misconduct as corroborating evidence supporting other evidence that marital misconduct occurred during the marriage and prior to the date of separation;

“Marital misconduct” is defined as follows:

  • Illicit sexual behavior.  For the purposes of this section, illicit sexual behavior  means acts of sexual or deviate sexual intercourse, deviate sexual acts, or sexual acts defined in G.S. 14-27.1(4), voluntarily engaged in by a spouse with someone other than the other spouse;
  • Involuntary separation of the spouses in consequence of a criminal act committed prior to the proceeding in which alimony is sought;
  • Abandonment of the other spouse;
  • Malicious turning out-of-doors of the other spouse;
  • Cruel or barbarous treatment endangering the life of the other spouse;
  • Indignities rendering the condition of the spouse intolerable and life burdensome;
  • Reckless spending of the income of either party, or the destruction, waste, diversion, or concealment of assets;
  • Excessive use of alcohol or drugs so as to render the condition of the other spouse intolerable and life burdensome;
  • Willful failure to provide necessary subsistence according to one’s means and condition so as to render the condition of the other spouse intolerable and life burdensome.
  • The relative earnings and earnings 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, including, but not limited to, earnings, dividends, and benefits such as medical, retirement, insurance, social security, or others;
  • 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 federal, state, or local 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.

If the dependent spouse commits a pre-separation act of adultery (Factor Number 1 above) that has not been forgiven by the supporting spouse, the dependent spouse's entitlement to alimony is lost.  If a supporting spouse commits a pre-separation act of adultery that is not forgiven by the dependent spouse, the supporting spouse must pay alimony if there is economic need.  In the event that both spouses commit acts of pre-separation adultery for which there is no forgiveness, a judge may weigh the degree of fault and consider that factor among others in determining whether an alimony award is appropriate, and if so, the amount and duration of any periodic payments.

Acts of marital misconduct must occur prior to the parties' separation if evidence of those acts is to be admissible in an alimony or postseparation hearing.  However, postseparation marital misconduct evidence may be used to corroborate evidence that marital misconduct occurred prior to the separation.

Marital misconduct continues to be a consideration in determining entitlement, length and amount of alimony.  Judges will probably be less sympathetic to the dependent spouse if it is the dependent spouse whose actions brought an end to the marriage.  On the other hand, marital misconduct on the part of the supporting spouse will make it more likely that a judge will order more alimony for a longer period of time.

Either party has the right to have a jury decide the marital fault issues at an alimony trial but the judge must determine the appropriate alimony amount, if any.  The judge may order alimony payable until either party dies or until the dependent spouse remarries or cohabits.  The judge may limit the duration of the alimony award to a specific time period.  In some cases, a judge may order rehabilitative alimony for a period of time sufficient to allow the dependent spouse to obtain additional education to return to the workplace.  Generally, the longer the marriage, the longer the duration of an alimony award.

Dependency

Only a dependent spouse is eligible for spousal support.  That spouse must be either actually substantially dependent upon the other spouse for his or her maintenance and support or substantially in need of maintenance and support from the other spouse.

Tax Consequences

When parties file separate tax returns, alimony payments will be considered taxable income to the dependent spouse and a deduction to the supporting spouse.  Parties may file joint income tax returns for any year in which they are married for the entire calendar year, although either party may insist upon filing a separate return at any time.  Just as before, we are required by the IRS to make this statement:  Any U.S. federal tax advice contained in this Summary is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.

Termination of Alimony

The court has a great deal of discretion in determining the amount and duration of alimony.  The court may make an alimony award for a specified or an indefinite time period.  If alimony is awarded for an indefinite time, it must terminate on the death of either party and on the remarriage or cohabitation of the dependent spouse.

DIVORCE FROM BED AND BOARD

A divorce from bed and board is often a misunderstood claim.  A divorce from bed and board is a court-ordered separation.  It is not an absolute divorce.  The divorce from bed and board grounds are as follows:

  • Abandoning his or her family;
  • Maliciously turning the other out of doors;
  • By cruel and barbarous treatment, endangering the life of the other.  In addition, the court may grant the victim of such treatment the remedies available under G.S. 50B-1, et seq.  
  •    Offering indignities to the person of the other spouse, rendering his or her condition intolerable and life burdensome;
  • Becoming an excessive user of alcohol or drugs so as to render the condition of the other spouse intolerable and the life of that spouse burdensome; and
  • Committing adultery.

If the court finds that a spouse has committed one of these grounds, the offending spouse may be ordered to leave the marital residence, although such relief is extraordinary and, in those rare instances when granted, is often allowed only when there is a pending child custody claim.  An order granting a divorce from bed and board accelerates the termination all marital inheritance rights.  The right to inherit from the estate of the other spouse ends upon the entry of the judgment of absolute divorce or upon a written agreement providing for such termination.

ABSOLUTE DIVORCE

In North Carolina, absolute divorces are almost always obtained on the basis of one year's separation.  After spouses have lived separate continuously for one year, with the intent on the part of at least one of the spouses to not resume the marital relationship and without actually resuming the marital relationship, either spouse may sue for absolute divorce.  Sleeping in separate bedrooms is not a separation for purposes of absolute divorce.  Attempts at reconciliation marked by isolated instances of sexual intercourse will not automatically end the period of continuous separation; however, instances of sexual intercourse and nights spent together may add to the totality of circumstances sufficient to cause a court to find that the parties have voluntarily renewed the marital relationship.  If it is determined that spouses have renewed the marital relationship, the twelve-month clock will be reset.  Sexual intercourse and nights spent together also have relevance to the alimony issue.

PROPERTY DIVISION

Classification

Unless the spouses agree upon a marital property division, the court will divide the property pursuant to North Carolina statutes on equitable distribution.  There are three types of property that must be considered.  "Separate property" includes all property owned by either spouse before the marriage, property acquired during the marriage by one spouse by inheritance or gift from a person other than the spouse, and property acquired after the date of separation with post-separation earnings.  A gift from one spouse to the other during the marriage is marital property unless the donor states at the time of the conveyance that it is intended to be the separate property of the recipient spouse.  Separate property also includes income from separate property and property obtained in exchange for separate property.  "Marital property" includes all other property owned on the date of separation that was acquired during the marriage.  "Marital property" includes all vested and non-vested pension and retirement benefits.   "Divisible property" includes passive appreciation and depreciation in the value of marital property after separation, property received after date of separation but resulting from efforts made during the marriage, and passive income received from marital property after date of separation.  As you might imagine, the law of equitable distribution is extremely complex, and this brief description is a gross over-simplification.

Division of Property

Unless the parties agree to the division of marital property, an equitable distribution hearing will be necessary.  This hearing may occur either before or after the absolute divorce and will be conducted by a judge without a jury.  Separate property will be kept by the spouse to whom it belongs while marital property will be divided between the parties by the court.  While there is no precise formula for dividing the property, there is a presumption in North Carolina that the marital property or its equivalent value will be divided equally and that the property will be divided in-kind.

There are fourteen (14) statutory factors that the court must consider in deciding whether an equal division is appropriate in a case.  These factors are:

  • Income, property and debts of a party;
  • Support obligations from prior marriages;
  • Length of marriage and age and health of each party;
  • Needs of custodial spouse to own or to possess the marital home place and household effects;
  • Expectation of retirement benefits which are separate property;
  • Efforts made by each spouse to acquire property;
  • Contributions of one spouse to the education of the other;
  • Direct contributions that increase the value of separate property;
  • Liquid or non-liquid nature of property;
  • Difficulty in valuing interest in a business;
  • Tax consequences;
  • Actions taken by either party to preserve or waste marital assets; 
  • Property received by a surviving spouse if deceased spouse passes away during the pendency of the equitable distribution action; and
  • Other factors.

Debt

Marital debts must also be divided between the spouses.  The court is not bound to divide debts in the same percentage as it divides assets.  The court must consider the purpose for which the debt was incurred and the disposition of any asset encumbered by the debt.  If one party establishes that a debt was incurred during the marriage, the other party has the burden of proving to the court that the debt was for a marital purpose and not for the individual separate expenses of a spouse.  Postseparation increases in marital debt and financing charges and interest related to marital debt are classified as divisible debt and will also be equitably divided by the court.

Marital Misconduct and Division of Property

Marital misconduct, such as adultery, is not relevant in the litigation of property rights.  The division of property in North Carolina is based upon the economic factors described above.

Tax Consequences

Generally, a division of marital property is a nontaxable event.  Usually, if property is transferred between spouses pursuant to an agreement or court order, it will neither be taxed as income nor allowed as a deduction.  There may be tax consequences, however, when funds are transferred from retirement accounts and when marital assets are transferred to third parties.  There are ways to transfer retirement assets without incurring immediate tax liability.  Some retirement plans will require a special court order specifically designed to transfer plan assets.  These court orders are called "Domestic Relations Orders” (sometimes referred to as “DRO’s) or “Qualified Domestic Relations Orders” (sometimes referred to as "QDRO's"), depending upon the nature of the retirement assets being transferred. All property distribution matters must be carefully analyzed for tax consequences.  Any U.S. federal tax advice contained in this Summary is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.

LEGAL FEE REIMBURSEMENT

If a trial is necessary, one spouse may be ordered to pay some portion of the other spouse's legal fees.  The court has the authority to award attorney fees for the child custody, child support, and spousal support claims, but not for the divorce from bed and board, absolute divorce, and equitable distribution claims.  The court has wide discretion in making such awards in permissible cases and it may award some, all or none of these fees to an otherwise eligible party.  

CHANGE OF NAME

A wife may wish to resume her maiden name after a divorce. This can be done at any time and it is not essential that the name change be a part of the absolute divorce judgment.  If the wife requests the name change in the absolute divorce complaint or counterclaim, the name change will become part of the absolute divorce judgment.

DATING RELATIONSHIPS

Although post-separation adultery may not be the sole basis for an award of alimony, it can be used as corroborating evidence to support an allegation that adultery occurred prior to the separation.   With certain exceptions regarding spousal attempts at reconciliation, and as possible corroboration as referenced above, post-separation adultery may not be the sole basis for alienation of affections and criminal conversation lawsuits, either.  Any extramarital affairs or dating relationships on the part of either party should be brought to the attention of your attorney immediately, so that you can be advised on what to do and not do.  Post-separation pre-divorce relationships may have implications for reaching a settlement of the disputed claims and, under certain circumstances, they may have implications to alimony, alienation of affections and criminal conversation claims.

ALIENATION OF AFFECTIONS AND CRIMINAL CONVERSATION

North Carolina is one of the few states in the country that have retained the pre-revolutionary civil torts of alienation of affections and criminal conversation.  “Alienation of Affections” is the cause of action for a lawsuit that a spouse brings against someone for breaking up the marriage.  The boyfriend or girlfriend of the other spouse is usually the defendant in these lawsuits, although it is possible that other people such as in-laws may be the defendant in these lawsuits.  “Criminal Conversation” is the not-so-descriptive cause of action that a spouse brings against the girlfriend or boyfriend of the other spouse for having sexual relations with that other spouse prior to the separation of the spouses.  These two causes of action are usually brought in the same lawsuit.  Unlike most family law causes of action in North Carolina, there is a right to a jury trial on these two.  If a jury determines that a defendant committed either of these causes of action, it must then determine how much, if any, the plaintiff was economically damaged.  These damages may include compensatory damages, designed to pay the plaintiff back for economic losses.  They may also include punitive damages up to $250,000.  Factors that often go into determining whether a lawsuit of this type is appropriate is the net worth of the defendant, and the related collectability of any judgment, and the cost to the plaintiff of bringing the lawsuit.  The law does not permit a plaintiff to recover legal fees in these types of lawsuits.

CONFIDENTIALITY

Your attorney must have all of the facts to represent you properly.  Anything you tell your attorney is strictly confidential, with certain limited exceptions.  Your attorney may request that a friend or family member who accompanies you to the initial consultation, wait in the lobby, at least initially.  Third party participation in your consultation with your attorney will destroy the attorney-client confidentiality privilege.  Your attorney may conclude that this is not a concern and may allow you to invite your friend into the session, but it is generally a good idea to discuss this with your attorney in private first.

SECURITY OF DOCUMENTS, CASH, INVESTMENT
AND CREDIT ACCOUNTS

It is important that you discuss the issues of document security and control of cash, investment and credit accounts with your attorney at your initial consultation.  Early decisions about your case can have an impact on the ultimate result.

WILLS

If you have a will, now is a good time to review it.  If you do not have a will, now is a good time to have one prepared.  The laws of our state provide that you must leave a certain amount of property to a spouse until such time as the two of you agree otherwise or until there is an entry of a judgment of absolute divorce, whichever first occurs.  Even before one of those events happens, a carefully written will can minimize what your spouse would otherwise receive by law, should you pass away before you settle the case or are divorced.  

ALTERNATIVE DISPUTE RESOLUTION

There are non-litigation means available to resolve matrimonial disputes.  Trials can be expensive, time-consuming and extremely stressful to the parties.  Mediation and arbitration are two common alternatives to litigation.  ADR methodologies are not mutually exclusive and we almost always try at least one even after lawsuits are filed.  In some judicial districts, an attempted settlement through mediation is required before a case can be placed on a trial calendar. Your attorney can help you determine the best strategy for resolving your case in the most cost-effective way.