In North Carolina, a divorce is the legal termination of a marriage. Ideally, spouses would be able to agree on the terms of a divorce, including how to share custody and divide up assets. However, many divorces are highly contested and involve fighting about custody, property division, and spousal support. In a contested divorce it is important to have an experienced North Carolina divorce lawyer on your side to represent you and your interests.
Disputed Grounds for Divorce
North Carolina is a “no-fault” state for divorce. Unlike in the past, a spouse does not need to show marital misconduct, such as cruel treatment, indignities, or adultery. To file for a divorce in North Carolina, a spouse has to reside in the state for at least 6 months. The spouses must be living separately from each other for at least a year and intend to remain permanently separated.
Even if one spouse wants to stay married, the other spouse can unilaterally decide to end the marriage if they meet the requirements for an absolute divorce. A divorce in North Carolina can be granted after separation of one year on application of either party.
Filing for Divorce in North Carolina
The first step in a contested divorce generally involves talking to your divorce attorney. Your attorney can help you ensure you have met the requirements for a divorce and review what you want to get out of the divorce and what compromises you might be willing to accept.
Next, your attorney can file a divorce complaint with the family law court. A copy of the complaint and related documents will be served on your spouse. Your spouse then has 30 days to file an answer to the complaint. If your spouse refuses to respond or fails to respond in time, does not respond, you may ask the court to enter a default divorce.
Contested Divorce Issues
Any issues that cannot be agreed on by the spouses may have to be decided by the court. These issues can be heavily contested. Spouses may disagree about what they think the other spouse should get, what is best for the kids, and blame the other for ending the marriage. Contested divorce issues include:
- Child Custody
- Child Support
- Property Distribution
- Spousal Support (Alimony)
- Pet Custody
- Savings and Debts
Before the courts rule on contested divorce issues, the judge may encourage the parties to settle the issues between the parties. This may include lengthy negotiations between your lawyer and your spouse's lawyer. A judge may also order the spouses to go to mediation.
Mediation in a divorce case involves a neutral third-party mediator who helps facilitate a settlement between the parties. The mediator does not decide disputes like a judge. Instead, the mediator helps the parties come up with their own agreements to avoid litigating the issues in court. Any terms the parties cannot settle will be decided during divorce court.
Both parents have a legal responsibility to provide support for their children. After a divorce, child support is generally paid by the non-custodial parent to help support the child's needs. Child support payments are based on the North Carolina Child Support Guidelines. The child support amount depends on various factors, including:
- Custodial arrangement
- Income of both parents
- Expenses of both parents
- Number of children
- Prior child support payments
- Health insurance premiums
- Work-related childcare costs
- Other extraordinary expenses
Child support is not generally negotiable. However, child support is based, in part, on the child custody arrangement. How the court decides your child custody plan will affect who pays child support and the amount of support.
Child custody can be one of the most contested issues in a divorce. If the parents cannot come up with an agreed child custody arrangement, the court will decide legal and physical custody of the child. In most cases, the courts prefer that parents share custody. Sole custody is generally limited to situations where one parent has a history of abuse or neglect.
Custody is determined based on a number of factors, to determine what will best promote the interest and welfare of the child. This includes:
- The child's current living situation;
- Ability of a parent to care for the child ;
- The child's preferences;
- The child's educational and healthcare needs;
- Safety of the child; and
- All other relevant factors.
A child custody plan will generally remain in force until there is a significant change in the child's or parents' situation, and one party petitions the court for a change. With so much at stake and the emotions involved in a child custody dispute, it is important to have an ally on your side to fight for your rights and make sure your child will be in safe hands.
In North Carolina, property is divided after a divorce based on “equitable distribution.” Property is classified as separate, marital, or divisible. Separate property generally remains the separate property of one spouse, including property that existed prior to the marriage. Marital property is all property that was acquired during the marriage until the date of separation. Divisible property is defined as all appreciation and diminution in value of marital property occurring after the date of separation and prior to the date of distribution.
Property division can be a divisive issue, especially when it comes to property that cannot be equally divided, such as the family home. Another spouse may also be hiding property or not disclosing bank accounts or other assets. An experienced contested divorce attorney can help you uncover any hidden property to make sure you get an equal share of the marital property.
Spousal Support and Alimony
Alimony is ongoing, long-term financial support that is paid from one spouse to another. There are no strict guidelines for spousal support (unlike child support). Alimony can be decided between the parties through a separation agreement. However, if the spouses cannot come to an agreement, alimony will be decided by the court.
There are a number of factors the judge may consider before deciding how much alimony is owed and for how long. These factors include:
- Number of years married
- Ability to pay
- Income and debts of each spouse
- Contributions made by each spouse
- Marital misconduct
Alimony can be ordered for a specific number of years or until some event. In most cases, the requirement to pay alimony ends when the spouse receiving alimony gets remarried or begins cohabitating with someone else. If there is a significant change in a spouse's life situation, like loss of a job, a spouse may ask the court to modify the alimony order.
Jerkins Family Law
If you are concerned about how your spouse will handle a divorce, Jerkins Family Law is here to help. We can represent your best interests in a divorce and make sure you are not taken advantage of. Located in Raleigh, North Carolina, Jerkins Family Law is committed to helping our clients in their time of need. Contact us today and see how we can help you and your family.