Frequently Asked Questions

In North Carolina, “absolute divorce” signifies nothing more than the termination of the marriage bond that was created by your wedding ceremony and marriage certificate. An absolute divorce in North Carolina may be granted on one of two grounds: (1) one year’s separation pursuant; or (2) incurable insanity. Obtaining a divorce based on incurable insanity requires a minimum three-year separation and also requires that specified experts provide evidence as to the spouse’s insanity. The insanity basis for divorce is rarely used; therefore, an absolute divorce in North Carolina can be obtained by either party, once you and your spouse have lived separate and apart for at least 12 consecutive months.

You do not need a written document to show you separated on a given date, you merely need to remember the date on which you did actually separate. You also need to be certain that at least one of you, at the time of the separation, intended for the separation to be permanent. Neither one of you is required to file for a divorce, but neither one of you can prevent the other party from seeking a divorce.

The statutes require that the Plaintiff set forth in his or her complaint that either the complainant or Defendant has been a resident of the State of North Carolina for at least six months preceding the filing of the complaint, and that the parties have lived separate and apart for one year. Additionally, the Plaintiff must set forth the name and age of any minor child or children of the marriage, and in the event there are no such minor children, the complaint shall so state.

A parent who doesn’t have the consent of the other parent cannot change the last name of a minor child unless: the other parent is deceased; the minor child is at least 16 years of age; the minor child has the consent of the custodial parent who has supported the child and the clerk of court is satisfied that the non-custodial parent has abandoned the minor child; or the other parent has been adjudicated as having abandoned the minor child.

You do not have to remain a North Carolina resident after you file for divorce. As long as you were a resident for at least six months prior to filing your complaint, you do not have to remain in N.C. Keep this in mind if you plan on moving to another state before filing for divorce because that state’s residency requirement may be more than six months. While you are free to leave N.C. after filing your divorce complaint, the relevant N.C. statute states that, “where both parties are residents of the State of North Carolina, and where the Plaintiff removes from the State and ceases to be a resident, the action may be removed upon motion of the Defendant, for trial or for any motion in the cause, either before or after judgment, to the county in which the Defendant resides.”

In North Carolina, a divorce from bed and board allows a spouse to obtain exclusive possession of the marital home. While a divorce from bed and board does not dissolve the marriage, this action will suspend the cohabitation aspect of the marriage. A divorce from bed and board will prohibit a spouse from exercising certain marital rights, and the spouse at fault loses his or her rights to the innocent spouse’s property.

North Carolina allows a spouse, when getting a divorce, to take a name other than the current spouse’s last name. The spouse seeking a name change would petition when they file the divorce complaint or when they file the answer to the other spouse’s complaint. A spouse may petition the court to change their name to their maiden name, the surname of a prior deceased husband, or the surname of a prior living husband if they have children who have that husband’s surname. The court will issue an order along with the divorce granting the request for a name change. There is no additional cost for this change when it is done at the same time as the divorce.

If you decide after the divorce that you want a name change, just present your divorce judgment to the clerk of court. For a small fee, you will be allowed to have one of the following name changes: maiden name, name of a prior deceased husband, or name of a prior husband with whom you had a child with that same last name.

In many cases, an annulment isn’t an option. Annulments are an option in limited circumstances in North Carolina. These circumstances include marriages between two persons nearer of kin than first cousins, between double first cousins, between persons either of whom is under 16 years of age, between persons either of whom has a spouse living at the time of the marriage, between persons either of whom is at the time physically impotent, or between persons either of whom is at the time incapable of understanding the marriage vows.

Additionally, a marriage contracted under the belief that the wife is pregnant, followed by the separation of the parties within 45 days of marriage, which separation was continuous for a period of one year, shall be annulled unless a child was born to the parties within 10 months of the date of separation.

In North Carolina, you must show that you and your spouse have been living separate and apart for at least one year prior to the institution of the suit. You will not be eligible for an absolute divorce without first living separate and apart for at least one year. Separate and apart does not include living in the same residence and sleeping in different bedrooms. You and your spouse must be living in different households.

An absolute divorce can be granted in spite of the fact that you and your spouse haven’t resolved other issues such as: child and spousal support; child custody; and equitable distribution.

A divorce complaint needs to be filed in district court in the county in which either party lives. If the complaint is filed in North Carolina and the Plaintiff then moves out of the state, the action can be moved to the county in which the Defendant resides.

Fault in regard to divorce from bed and board must be proven by the greater weight of the evidence. The proof that is required under alimony case law is the same as the proof required to show fault in a divorce from bed and board case.

There are several ways to serve (deliver) a complaint on your spouse. If you serve your spouse via publication, they have 40 days to file an answer. Typically, a Defendant has 30 days from the date of service to respond and the ability to request an additional 30 days to respond. Often times, a Defendant fails to file an answer. In the event that your spouse doesn’t file an answer, you just need to wait out the waiting period for a hearing or have your spouse waive the waiting period.

The Plaintiff must demonstrate to the court that he or she is entitled to a divorce either verified evidence or in-court testimony. Even if a Defendant admits to the allegations in the Plaintiff’s complaint, a Plaintiff must still prove his or her allegations to the court by one of the above-stated methods. If your attorney uses a summary judgment motion, you will not have to appear in court. Trial court proceedings vary from county to county; therefore, you should check with your attorney to be certain of local procedures for absolute divorce.

Either you or your spouse must have lived in North Carolina for at least six months before filing for divorce. In the event that you or your spouse have lived in North Carolina for less than six months, the court will not have jurisdiction to try the action.

Some people want to get divorced as soon as possible for personal reasons. One symbolic value of initiating a divorce is to show your spouse (especially if the spouse left you) that you are in control of your life, and you are taking steps toward greater independence. One personal ground for moving forward with a divorce is to become eligible for remarriage.

If, on the other hand, neither husband nor wife wants to go through the formal steps of getting an absolute divorce, there is no requirement that either party does so. This is true whether the parties have been separated just over a year or for many years.

One potential disadvantage to getting a divorce is that a spouse will no longer be continued indefinitely as a dependent on an employed spouse’s health insurance policy. Under present federal law, the continued coverage is only guaranteed for another 36 months, at most, following divorce.

If your attempt to serve your spouse via certified mail and/or by sheriff does not work, you may attempt to serve your spouse via publication.

If you are in the military and stationed on a military base in North Carolina, state law allows you to establish North Carolina as a place of residence. The usual residency barriers are removed in this situation, and you will only have to establish that you physically reside in the state and intend to change North Carolina to your place of residence. Likewise, independent adult students may establish residency at the place in which their school is situated if they intend to stay in that state. Also, non-citizens of the United States do not need to be citizens to establish residency in North Carolina for the purpose of a divorce action.

If you fail to assert an alimony claim or don’t have a pending alimony action prior to a divorce being granted, you will not be able to assert a claim for alimony. You must also assert a claim for equitable distribution before the entry of a divorce judgment, or you will not be able to assert a claim later. There is, however, an exception that allows you to bring a cause of action for equitable distribution up to six months after a divorce has been entered if you are the Defendant in the divorce, you were served via publication, and did not appear for the divorce action.

As long as you and your spouse have been living separate and apart for at least one year and your paperwork has been correctly processed, you can get a divorce without your spouse’s consent. If your spouse has incurable insanity, the separation period must be at least three years.

Notice of Service of Process by Publication is a way of serving your spouse with notice of the action through a newspaper. The waiting period, during which time your spouse has a chance to file a response, is 40 days. Because this mode of service is more complicated than others, it is difficult to achieve without the help of an attorney.

COBRA is a federal law that provides additional medical insurance protection to the dependents of a separated spouse. Under this statute, health insurance benefits that would have normally been lost upon divorce or separation are preserved three years following legal separation or divorce. You need to be aware of the very strict notice requirements set in place by your company insurance provider and COBRA itself.

Divorce from bed and board is a fault-based action to get the court to order the spouse who is at fault out of the residence. A divorce from bed and board can establish the separation required in other claims brought in tandem such as: custody claims, child support claims, and equitable distribution claims. You must establish residency to bring forth a claim for a divorce from bed and board. Only the spouse not at fault can apply for a divorce from bed and board. There are six fault grounds available to file for divorce from bed and board. These grounds include: abandonment, malicious turning out of doors, cruel or barbarous treatment, indignities, excessive use of alcohol or drugs rendering the condition of the other spouse intolerable, or adultery. The spouse seeking the divorce cannot have provoked the misconduct of the spouse at fault. The complaining party must prove one of these fault grounds by the greater weight of the evidence.

If you are the spouse who needs to defend against a claim for divorce from bed and board, the same affirmative defenses available in an alimony proceeding are available to you in a claim for divorce from bed and board. Those defenses include: condonation, connivance, collusion and recrimination. Reconciliation is not an affirmative defense for a divorce from bed and board; however, if marital relations resume after the divorce is granted, the effect of the divorce from bed and board will be nullified.

Lastly, a divorce from bed and board allows a spouse to obtain exclusive possession of the marital home. While a divorce from bed and board does not dissolve the marriage, this action will suspend the cohabitation aspect of the marriage. The spouse at fault loses his or her rights to the innocent spouse’s property.

To obtain a divorce in North Carolina you must:

• show that you or your spouse have lived in North Carolina for at least six months prior to the filing of the divorce action;
• file a divorce complaint with the clerk of court in the county that you live in;
• deliver the complaint to your spouse via certified mail or by the sheriff;
• after the waiting period, appear in court to obtain the divorce.

Your divorce will be final once the judge has signed the order. While obtaining a divorce in North Carolina is not a complex process, issues may arise, such as: child custody, child support, division of property, and alimony proceedings.

There are only two grounds available for divorce in North Carolina. The first is separation lasting at least one year. You must swear, under oath, that you and your spouse have been living separate and apart for one year. It is not enough to have lived in separate bedrooms, or to not have engaged in acts of sexual intercourse. You must live in separate residences during the one-year period. You do not need to file papers to document the beginning of your separation; your assertion is enough to prove that the year has elapsed. The second ground for divorce in North Carolina is incurable insanity; however, this is very rarely used.

Under prior law, living “separate and apart” meant ending habitation as well as sexual relations. The older cases found that the separation requirement was not met if, during the one-year period, the couple had sexual relations. Even isolated or casual acts of sexual intercourse were found to stop the one-year period required for divorce predicated on separation. This rule about isolated sexual relations created many problems.

The statute was amended in 1987; and the following provision was added: “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 [halt] the statutory period required for divorce predicated on separation of one year.” G.S. 52-10.2 provides: “Resumption of marital relations” shall be defined as voluntary renewal of the husband and wife relationship, as shown by the totality of the circumstances.

Under present law, isolated incidents of sexual intercourse do not stop the statutory one-year period from running, provided such incidents do not amount to a “resumption of marital relations.” Whether or not such resumption of marital relations occurs is to be determined by “the totality of the circumstances.” That means that one incident is unlikely to stop the year’s running, but no one knows for sure how much sex is “too much” when it comes calculating the required one-year period for divorce.

The party seeking a divorce from bed and board must prove at least one of the six fault grounds listed in the statute: (1) abandonment; (2) malicious turning out of doors; (3) cruel or barbarous treatment; (4) indignities; (5) excessive use of alcohol or drugs rendering the condition of the other spouse intolerable; or (6) adultery.

In addition, the party filing for the action must prove that he or she did not provoke the other spouse’s misconduct. The right to jury trial in an action for divorce from bed and board is dictated by the statutory provision allowing a jury to make the factual findings on issues of fault.

Where verification is absent or is improperly made, the court lacks jurisdiction to grant a divorce. For a complaint for divorce to be valid, it must be properly verified when it is filed.

Under North Carolina law, you may sue any individual who has a caused a married person to suffer the loss of affection from their spouse so long as you can prove there was:

• Genuine love and affection between spouses who are validly married;
• The love and affection was alienated and destroyed; and
• The Defendant’s wrongful and malicious act caused the loss of love and affection.

This is considered Alienation of Affection. It is not necessary that you prove that the individual set out with the intent to destroy your marriage; you merely need to show that they acted knowing it would impact your marriage.  In fact, you don’t even have to prove sexual intercourse occurred.

Unlike alienation of affection, a claim of criminal conversation requires proof of sexual intercourse outside of the marriage. There must be a valid marriage between you and your spouse, and there must be sexual intercourse between your spouse and a third party during the marriage. This can be proved by direct or circumstantial evidence.

Yes, the person abusing you could be charged for several crimes, including Domestic Criminal Trespass, Stalking, Rape or Sexual Offense, Harassing Phone Calls, or Communicating Threats.

Domestic Criminal Trespass

If you ask a former spouse or partner not to come to your home, or if you ask someone you are separated from or no longer in a relationship with to leave your home and they refuse, it is considered Domestic Criminal Trespass.

Stalking

Stalking is when someone purposely follows you more than once or is near you with the intention of:

• making you fear for your life;
• physically harming you; or
• causing you emotional distress.

Rape

If a person has vaginal intercourse with you against your will or by force, that person has committed rape. Rape is considered First Degree Rape if the rapist:

• uses a dangerous weapon;
• threatens you with a dangerous weapon;
• is helped by others; or
• seriously injures you.

First Degree Rape has a maximum penalty of life in prison.

Other Sexual Offense

Sexual Offense is when someone forces you to participate in any sexual activity except vaginal intercourse.

Misdemeanor Assault

Misdemeanor assault is when someone physically harms you or makes you afraid that they are going to hurt you. This can be if someone acts like they are going to hurt you, or attempts to hurt you. If the attacked person is a child younger than 12, or a female is attacked by a male over the age of 18, the penalty is more severe. It is called Assault on a Female.

Felony Assault

If you are attacked with a weapon that could kill you, and your attacker intends to kill or seriously injure you, it is considered a Felony Assault. The penalty for Felony Assault is more serious than a Misdemeanor.

Communicating Threats

If a person threatens to injure you or harm your property, verbally or in writing, and you believe this person would act on the threat and any reasonable person would also believe it, this is Communicating Threats.

Harassing Phone Calls

A person has committed Harassing Phone Calls if they use threatening, profane, or indecent language on the phone or your voicemail. This can also include harassing or annoying you through repeatedly calling or making untrue statements.

You can leave the house and not come back. You can also take your children with you when you leave, unless a court orders you not to. However, you should talk to an attorney before doing this, because if you leave without good reason, your alimony situation could be impacted.

Also, if you leave, you might not be able to go back until the court officially divides the property. This can take a long time and you might not be awarded the house in the end. So, until you’ve spoken with a lawyer, you should stay in the house if possible. However, do not stay in the house if your spouse is violent. Call the police and they will help you take the needed steps to protect yourself and your children.

In the absence of an ex parte order, the court must wait either five days after providing notice to the other party or five days after service of process to the other party – whichever occurs first. In addition to waiting until the other party has sufficient notice, the moving party must believe he or she faces serious or immediate injury to himself, herself, or a minor child; the party must actually move for emergency relief; and no ex parte order shall have been entered.

By violating a domestic violence protective order, an individual can be held in contempt of court for not following the court’s order. Local law enforcement is authorized to arrest an individual if the officer has reason to believe that the person has violated a domestic violence protective order. An officer may be hesitant to act unless he witnesses the violation, the violation is readily apparent, or it is reported by a disinterested third party. Violating a protective order is a misdemeanor.

Domestic violence is when someone:

• attempts to hurt you physically; or
• actually causes physical injury.

It also includes making you afraid of “imminent serious bodily injury” by threatening to hurt you if you do not do what they want you to do. This could be something you would not usually do. This “imminence” has to do with the threat of hurting you, not actually hurting you.

A protective order may terminate at the end of a fixed time period that may not exceed one year. After that one-year period, you may request a renewal of your protective order for another year. Copies of the order must be issued to each party, and it is the responsibility of you or your attorney to ensure the proper law enforcement officers receive all appropriate documents.

The most common crime in the U.S. is thought to be domestic violence. However, it is rarely reported. Statistics show that in the past 10 years, more than 50,000 women have been killed by their partners or husbands and over 25% of women treated in emergency rooms have been injured through domestic violence. This is disturbing, but becomes more so when you consider that children are often also abused in these situation. That being said, domestic violence is not unique to women. Men are also victims. Not only that, but domestic violence is not class-specific. It can happen in any socio-economic class. Because of this, domestic violence is not only more difficult to define, but also less recognized.

You and your witnesses must be sufficiently prepared for your domestic violence trial, as preparation will be one of the keys to a successful outcome. Your testimony should be a truthful account of the fear you felt during your relationship. Supplemental evidence such as medical records, photographs, or other physical evidence can help support your testimony. During your preparations, make all evidence easy to read and see for the court on the day of your trial.

There are many different mental health professionals who can help you. These include:

• clinical social workers
• counselors
• psychiatrists
• psychologists

Some of these mental health professionals work for the government or nonprofit organizations and others have private practices. They will provide counseling to you for a fee, which, depending on your income, could be discounted. If your marriage is ending, it is very important that you and your spouse get emotional support.

Established in 1979, the Domestic Violence Act is meant to protect men, women, and children that reside with a victim of domestic violence. This act helps to provide a fast method of separating a victim from their attacker, whether the parties are married or not.

Typically, notice has to be given to the other person involved when you’re filing a court order. However, if your case has to do with domestic violence, you can get a court order without notice. Also, the court order can give you control of your home, car, and temporary child custody. It can also state that your abuser cannot come near you or your children.

If the court order says that your abuser cannot come near you or the children and they do it anyway, they can be arrested. Those involved must be related in one of the following ways for domestic violence to be available:

• Spouses, current or former;
• Those of the opposite sex who are or were in a dating relationship;
• People who currently live together or have lived together;
• Those who have a child together;
• People with a parent-child relationship or grandparent-grandchild relationship, as long as the child or grandchild is younger than 16;
• Those who are or were members of the household.

The abuser must attempt to physically hurt you, purposefully hurt you, or threaten you in such a way that you become seriously afraid that they are going to hurt you.

According to Section 50B-5(a), a domestic violence victim can ask for help from the police. However, the time it takes for them to get there is only “as soon as practicable,” which means that they may not be able to come right away. Also, only call the police if you really need them or are in serious danger. If you call the police repeatedly over a 48-hour period and they don’t believe you need help immediately, they don’t have to come.

A police officer responding to a domestic violence call can do whatever he or she needs to do, within reason, to protect you. He can also give you advice on medical care, counseling, places you can stay/seek shelter, and other needs. The officer can also help you collect what personal property you might need while you’re away from home and take you to an appropriate facility. However, some counties do not allow officers to help the abused in gathering their things unless they have a temporary court order that allows them to do so.

While attorneys can create custom complaints, do-it-yourself forms prepared by the Administrative Office of the Courts are available with the Clerk of Superior Court. If seeking child support, child custody, or alimony, these forms should not be used because they do not provide the necessary allegations to establish a legitimate claim for custody.

If you are being abused, your reason for filing or “action” falls under Chapter 50 (which covers family law causes of action). You can file a domestic violence action in North Carolina, but you have to be a resident. So, when filing, you can introduce a new action, or file a request to the judge that asks him or her to make a decision.

An ex parte order can be issued where there is an immediate threat of domestic violence. An ex parte hearing must be held “within 10 days from the date of issuance of the order or within seven days from the date of service of process on the other party, whichever occurs later.” And while the order can award temporary custody of a child, the Administrative Office of the Courts (AOC) domestic violence forms do not establish a sufficient claim for child custody; therefore, such forms should not be used if custody is the ultimate goal. This is also true for a claim for spousal support.

The remedies available for relief from domestic violence include: giving the aggrieved party possession of the residence and excluding the other spouse from the household; evicting the party and assisting the aggrieved party in returning to the home; and requiring a party to provide alternate housing. Also, an order for spousal and child support can be issued in addition to attorney’s fees. Such an order can also grant the injured party possession of personal property. Although unlikely, a judge may also award temporary child custody as a result of domestic violence. Lastly, the court can issue a no contact order to prevent any further violence. North Carolina law states that the remedies provided are not an exclusive list.

A domestic violence complaint should include specific facts detailing the alleged acts. If your complaint includes matters other than domestic violence, it is best to separate those matters into their own causes of action.

If your spouse is violent and you are in danger, call the police immediately. When you’re safe, contact the domestic violence relief agency for your county. The police can tell you how to contact them. They can also give you advice and if you need a safe shelter, they can tell you how to get to one.

A motion for emergency relief should be filed when a victim of domestic violence believes he or she is in danger of serious and immediate harm. While a motion for emergency relief must be filed separately, the victim may use the verified complaint’s prayer for relief as a motion for emergency relief in an effort to hasten the process.

The Domestic Violence Act protects present and former spouses, persons related as parents and children, individuals who are dating, and those who have lived as if they were married. Under the Act, marriage is not a prerequisite to protection under the Act. According to this statute, a dating relationship is one where the parties are romantically involved over a continuous period of time. A casual acquaintance is not considered dating.

An arbitrator’s role is to help you and your spouse work through any differences. As a result, it is important that you and your spouse choose an individual you both can trust. This individual does not have to be an attorney. Your arbitrator can be a mental health professional, clergy, or any other trained professional. Your lawyer can help you find an arbitrator.

A mediator’s role is to help you and your spouse work through any differences. As a result, it is important that you and your spouse select an individual you both can trust. This individual does not have to be an attorney. While some attorneys are trained in mediation, they do not act as certified mediators. Your certified mediator can be a mental health professional, clergy, or any other trained professional. Your lawyer or a judge can assist you with selecting or appointing a mediator.

Arbitration can be initiated in one of three ways:

• you can initiate the arbitration process by filing a demand for arbitration;
• you and your spouse may both initiate the process; or
• arbitration can be court-ordered.

Mediation can be initiated in one of the following ways:

• you and your spouse may both decide to mediate at any point of the process; or
• the court may order mediation.

In North Carolina, the court requires that couples complete mediation before trial for child custody and equitable distribution cases.

In non-binding arbitration, unless you and your spouse agree otherwise, you are not bound by the arbitrator’s decision. If you and your spouse agree to be bound by the decisions of the arbitrator, that decision will become a court order. However, an arbitrator’s decision can still be overturned, vacated, or modified if it fails to uphold certain criteria.

If you have already filed a lawsuit and are involved in litigation, the mediation is your best chance to get all of the issues resolved before going to court. If your case isn’t resolved in mediation, you and your attorney will prepare to go to court to litigate all of the issues that weren’t resolved at mediation. For example, if the child custody and child support issues were resolved at mediation but alimony was not, you and your lawyer will proceed to court on the issue of alimony.  Sometimes, you and your lawyer will continue to try to resolve the outstanding issues with the opposing party and opposing lawyer.  If you and your lawyer agree, you could try arbitration or collaborative law.

If you haven’t filed a lawsuit and you tried a pre-litigation mediation, the next step would be for you and your lawyer to file a lawsuit and begin the litigation process.  You could ask the court to refer the case to mediation again at a later date.

Most definitely. As with any aspect of divorce, an experienced lawyer can help you navigate the process. An experienced divorce lawyer can explain your rights, review the facts of your case, explain divorce law and how it applies to you and your situation, and help you understand the divorce process. Most importantly, in mediation and arbitration, an experienced divorce lawyer can help you achieve the best outcome for you. An experienced lawyer can also tell you what to expect and how to handle a mediation and arbitration.

Your lawyer is your guide and advocate during the entire process, whether it be in mediation, arbitration, or in court. In arbitration, your attorney is your advocate and will help you identify the issues to be arbitrated. Just like in a trial, your attorney will represent you and argue your case in the arbitration. In arbitration, the arbitrator is the judge. Your attorney will prepare for arbitration just as if preparing for a trial before a judge in court.

Your divorce lawyer’s role in mediation is to help guide you through the mediation process. To that end, your attorney will advise you on decisions you’ll make and how the law applies to your case during the mediation. Typically, in mediations, issues like child custody, child support, alimony, and property division are resolved. Your attorney’s job is to protect your best interests in the mediation by advising and helping you through the mediation process. Your lawyer will work with you to make proposals and counter-proposals to the opposing party and opposing lawyer. Your lawyer will help prepare any final settlement documents if an agreement is reached in the mediation.

If you have unintentionally obtained a copy of your spouse’s email, maybe someone accidentally sent it to you, it is not illegal to go through it or use it. What the Electronic Communications Privacy Act (ECPA) forbids is unauthorized access or intentional interception of electronic communications or illegal access of stored communications. It is practically illegal to obtain your spouse’s password without proper permission. If you accessed his or her emails, you may be sanctioned or prosecuted for violating ECPA. And if you used an unauthorized email or shared its content with others, you may face a lawsuit that could cripple you financially and socially. What matters in this issue is the source of your email: When it is obtained legally, there is no problem about reading them. But if it was obtained illegally — for example, someone stole your spouse’s password passed it on to you; you may be liable for legal prosecution.

The 6th Circuit Court of Appeals has stated that parents may in good faith give their consent before their children’s conversations can be recorded. Such an action was deemed necessary in order to protect the welfare of the child involved. On the other hand, the 4th Circuit Court of Appeals, which has North Carolina under its jurisdiction, does not have such a clause. But here is the truth: The taping of a child’s conversation potentially violates the Electronic Communications Privacy Act (ECPA). So, also taping a child’s telephone conversation with another parent would also violate North Carolina state criminal law (G.S. 15A-287). However, listening in on your child’s communication on another phone at your home is not considered illegal or criminal: This is termed the “extension line” exception to the ECPA. It is believed that it is not illegal to monitor a conversation that you could otherwise have heard legally. Though, the federal courts differ on this opinion, wondering whether it was proper to record such a conversation. You must be careful about this issue because it amounts to taking unnecessary risks.

Under North Carolina law, it is not illegal to record your own telephone calls since the law only requires one party be aware of the recording.

However, it is illegal to:

• Record other people’s phone calls without letting them know about it — in other words, you are breaking the law for recording the telephone conversations between your spouse and a third party.
• Record phone conversations between two people when one of them is out-of-state. You may inadvertently be breaking the law of that state.

When in doubt, always ask your attorney for advice about this issue.

According to the principle of the Electronic Communications Privacy Act (ECPA), you must respect your spouse’s expectation of privacy. However, if your spouse gave you his or her password to check emails, you should only use the password for that purpose. For instance, if your spouse allows you to check just one email, do not go beyond that defined authority and begin to access all of his or her emails. That would constitute violating ECPA, and you may be punished or prosecuted for such behavior if your spouse chooses to take the matter to court.

Eavesdropping on people or intercepting their communications has dire consequences. Electronic Communications Privacy Act (ECPA) violations can lead to both civil and criminal penalties. Any or both of these penalties can be financially damaging.

If you are caught breaking ECPA:

• You can be asked to pay damages to your victim, and the damages are calculated based on each day of the continuation of violation.
• You can be ordered to pay your victim’s attorneys’ fees, which may be higher than the damages.
• Other punitive measures can be imposed on you, including a term of imprisonment not exceeding 5 years, if your actions caused serious malicious damage to your victim’s life.

In addition to the federal law, there are also state laws penalizing people eavesdropping on the others. North Carolina General Statute Section 15A-287 criminalizes the act of willful interception, use or disclosure of the contents of any oral, wire, or electronic communication “without the consent of at least one party to the communication.” This offense is also referred to as a Class H felony. And you can be sued under North Carolina common law for an “invasion of privacy.”

With a lack of clear and uniform interpretations in federal courts, the law guiding privacy in electronic communication is indeed complicated. However, there are some fundamental guidelines you can use to ascertain if Electronic Communications Privacy Act (ECPA) violations have occurred or not. The first thing to consider is that there must be “justifiable expectation of privacy.”  This indicates that a reasonable person expects his or her telephone communication and personal email to be private.  Any illegal access into his or her telephone conversations or private email will be judged an ECPA violation. On the other hand, it is impossible to assume that a joint email account or a piece of information placed on a public bulletin is private. In the same way, it is difficult to state if chatroom discussions are private or not. Some chatrooms expect each user to have his or her own password. That may be considered private. Even though each user has his or her own password to sign in, some users can still log into the same server as “guests,” so there is every possibility that someone’s privacy may be breached and there may be no guarantee of privacy for all the users.

The Internet is an open world with its own risks and dangers. Some private individuals or hackers may be paid to mount electronic surveillance on you. The first thing you should do is to secure your computer. You do not necessarily need to have any technical knowledge or programming capability to do this. All you need to do is to install firewall software, password protection and encryption software on your computer. Firewalls can shut out unwanted intruders or hackers from getting into your computers; password protection software is integrated in most email services; and the encryption technology is designed to prevent unauthorized access and illegal tampering with your electronic information — for any hackers to gain an entry into your data, they must first decrypt the code utilized by the encryption software. If, at any time, you discover that your electronic data has been breached, you can invoke the Electronic Communications Privacy Act (ECPA) and file a lawsuit for the exact damages, injunctive relief to stop the intrusion, attorneys’ fees and request for punitive damages. This lawsuit should be filed within two years after the date upon which you had a reasonable knowledge of the ECPA violation. The other legal actions available to you are a civil lawsuit and criminal charges for privacy invasion under North Carolina law.

The law allows you to use stored electronic communication that you have accessed, but you may not use any information obtained through the process of “interception.” Some courts have clarified “interception” to mean the process of accessing communications as they are transmitted. This may include placing a wiretap on a phone, hiring a computer expert to monitor your spouse’s online conversations, or breaking into your spouse’s cellphone through the backdoor to eavesdrop on his/her conversations.

You may not use any evidence obtained through interception in your divorce. You cannot even share it with anyone in any way. You may be culpable for criminal punishment and asked to pay damages for your illegal actions. People who have heard evidence obtained through interception may be implicated and prosecuted.

Your spouse giving you his or her email password may be considered “consent.” This is a vital aspect of the Electronic Communications Privacy Act (ECPA). The main purpose of ECPA is to dissuade people from using, disclosing or intercepting unauthorized information. The courts normally discuss the issue of consent case-by-case. Consent can be explicit or implied. But there is a gray area: If your spouse supplies you with his or her email password, it is advisable that you check with an attorney before accessing the account. This will save you from the avoidable error of being accused of mining unauthorized information from your spouse’s email account.

The law applies to obtaining spousal communication through voicemail systems, traditional phone wiretaps, web-streaming video, cordless telephone interceptions, chat logs, emails, Voice over IP, and videotaping or recording of private face-to-face conversations. As a matter of fact, the law covers all other forms of communication, in addition to those already listed above.

In order to modify or vacate an award for alimony, a motion must be made in the case and there must be a showing of changed circumstances by either party. In North Carolina, two things are required to modify an alimony order: (1) alimony is being paid under court order and (2) a substantial change of circumstances has occurred, measured by a comparison of facts existing at the time of the original order and the time when modification is sought. It is important to note that North Carolina courts cannot modify an alimony order entered by a court in another state.

There are various ways to enforce an alimony decree, such as: an arrest of the offending party; the garnishing of wages; injunction; receivership; contempt of court; and execution sales and supplemental proceedings. Note that the enforcement of alimony is governed and enforced by contract law. In terms of the garnishing of wages, North Carolina law puts a dependent spouse in a unique position as a creditor of the supporting spouse. Also, in regard to contempt, a non-complying party may be held in contempt of court even if that compliance is still under review by way of a pending appeal.

Support agreements that are incorporated into a judgment can be modifiable, but that agreement can also state that alimony is not modifiable. However, spousal support that is agreed upon outside of court cannot be modified by a court order. Only the involved parties can modify the agreement. To enforce an out-of-court agreement, a court may interpret the intent of the parties to award specific performance of the agreement as a remedy. In addition, the court may create a security interest in real property to support an order for alimony.

Where spousal support is decided by a separation agreement, the parties can agree to whatever alimony termination conditions they wish. An alimony order may provide a specific date for its own expiration or be for an indefinite term. However, there are certain situations that can cause alimony to terminate on an earlier date. These events include: the parties resume marital relations; the dependent spouse remarries; the dependent spouse cohabits with another adult in a private heterosexual or homosexual relationship; the dependent spouse dies; or the supporting spouse dies.

North Carolina allows a dependent spouse to request reasonable attorney’s fees in connection to an award for post-separation support and alimony. Attorney’s fees can even be recovered in connection with an appeal.

Many people feel the need to modify their alimony obligations when their small business becomes financially strained. The option to modify your alimony payments only exists if certain requirements are met.  If you are seeking to amend your alimony payments or if you are a business owner considering entering into an alimony agreement, you should carefully consider these requirements.

If your alimony obligation stems from a court order, the court has a mechanism to modify alimony obligations. The court must find that there has been a “substantial change in circumstances” from the original order setting the amount of alimony payments. If the court finds that there has been a substantial change in your circumstances, the order may be modified or vacated completely. You must show evidence of that substantial change. This is why it is important to make sure the judge includes detailed “findings of fact” in the original order. These detailed facts will allow you more opportunity to distinguish your current situation from that at the time of the order.

If your alimony obligations stem from a separation agreement, make sure that you have provisions in the separation agreement that provide for modifications if your income changes. Absent such provisions, alimony obligations that stem from a separation agreement can’t be modified.  If you are considering entering into a separation agreement, consider the potential for your business to fluctuate in the future and tell your attorney of these fluctuations. It may be more advantageous to get a court order instead in case you need to amend the amount in the future.

The amount of alimony a supporting spouse is required to pay is determined based on the spouse’s income at the time of the alimony trial, unless the supporting spouse has tried to avoid financial responsibility by deliberately refusing work or intentionally decreasing income.

If you have a valid separation agreement that waives post-separation support, alimony and attorney’s fees, that agreement may be used to bar an action for post-separation support, alimony, and attorney’s fees. If, however, the waiver causes a dependent spouse to be eligible for public assistance at the time of separation or at the end of the marriage, the court is allowed to overlook the provision in the agreement and order the supporting spouse to provide spousal support.

Under North Carolina law, spouses may testify against each other in an alimony action; however, there are other obstacles in place that may bar a spouse’s testimony. One N.C. law states, “No husband or wife shall be compellable to disclose any confidential communication made by one to the other during their marriage.” A communication is considered confidential if it was given under the pretense that it was protected by affection, confidence and loyalty produced by a marital relationship. Because of this, a spouse who admits fault to a spouse for the purpose of mending the relationship is able to bar the admission of fault.

Another privilege that can bar testimony is the constitutional privilege against self-incrimination. A party may utilize this privilege to prevent testifying about adulterous acts that could link that party to a criminal act. This privilege applies not only at trial but also during discovery and pleading. It is important to note that by invoking this privilege, the fact-finder may infer that the truthful answer may be harmful to the party invoking the privilege, therefore having a similar effect to admitting fault. Also, by invoking this privilege and allowing the fact-finder to infer fault, the party invoking the privilege will abandon his or her claim for alimony.

A divorce does not have to be pending to bring an action for post-separation support and alimony. You may request alimony in conjunction with an absolute divorce, a divorce from bed and board, or in an independent action. It’s important to note that an alimony claim joined to an action for divorce from bed and board must meet certain residency requirements. Also, an independent action for post-separation support or alimony is not subject to a waiting period. In terms of post-separation support, the court may base its award on an affidavit, a verified pleading, or other evidence, and the reasons for and the amount of the awards must be set out in the order.

The amount of alimony you will receive can be based on any of the following factors:

• Marital misconduct by either spouse;
• The earnings/earning capacity of the spouses;
• The physical, mental, and emotional states of the spouses;
• 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 education of each spouse and the ability for each spouse to obtain the necessary employment;
• The relative legal and financial obligations of each spouse;
• 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, and Local tax ramifications of the alimony award;
• Whether the income of either party was already considered in determining the value of a marital asset in an equitable distribution of the parties’ marital property;
• Any other factor relating to the economic circumstances of the parties that the court finds to be just and proper.

A dependent spouse is barred from receiving alimony if he or she is found to have participated in illicit sexual behavior and the supporting spouse has not also participated in any illicit sexual behavior. If both parties have participated in illicit sexual behavior, it is up to the court’s discretion on whether to award alimony.

If the following criteria are met, alimony is deductible by the paying spouse and reportable by the dependent spouse under Federal and State income tax law. Alimony is taxable if: the payments are in cash and not in-kind; the payments are made incident to divorce or to a separation agreement; the parties have not designated the payments as non-alimony; the parties are not living in the same household; and the paying spouse has no liability for payment after the death of the payee spouse. If the parties agree that the payments will not meet the above criteria, the paying spouse cannot attempt to obtain a tax deduction for the alimony payments.

If you or your spouse attempt to manipulate the tax benefits associated with paying alimony, a paying spouse may have to relinquish a wrongful deduction or recapture any excess alimony paid to the dependent spouse. The recapture rule governs the process of requiring a paying spouse to recapture excess alimony and pay taxes on that amount while the dependent spouse will then have a deduction for that amount. The recapture process is complicated and before you and your spouse fall into a tax pitfall, it is best to discuss your options with your attorney and tax advisor.

There are several factors associated with your love life that could impact your post-separation support and alimony. Factors such as: how long you have been dating other people; whether you are the “dependent” or the “supporting” spouse; whether the dating began before or after the date of separation; and whether the dating can be shown to embrace “illicit sexual behavior” or some other marital fault such as “indignities.” Post-separation support and alimony cannot be ordered by a North Carolina court if your spouse can meet his or her own financial needs and/or you yourself don’t have the ability to contribute to your spouse’s financial welfare, OR you can meet your own financial needs and/or your spouse doesn’t have the ability to contribute to your financial welfare.

There are pitfalls to dating for both the dependent and supporting spouse. Any illicit sexual behavior on behalf of the dependent spouse will bar him or her from receiving alimony. On the flip side, if the supporting spouse participates in illicit sexual acts before separation, alimony will be mandatory. If both spouses have engaged in illicit behavior, an award of alimony is within the court’s discretion.

The rules are slightly different when it comes to post-separation support. Post-separation support is based solely on the dependent spouse’s need and the supporting spouse’s ability to pay. Therefore, a supporting spouse’s illicit behavior is not considered unless the dependent spouse has also participated in such behavior.

Finally, it is important to be aware of your position in a new relationship during a trial for alimony in the event that you are a part of a jury trial. Most family law matters are tried before a judge; however, alienation of affection and criminal conversion cases can be heard by a jury. To you or your new partner’s dismay, a jury trial could result in unwanted media attention.

Post-separation support is a means for the dependent spouse to continue to meet his or her reasonable needs. The dependent spouse must be able to show that he or she cannot meet those needs on his or her own. In order to award post-separation support, a court must first consider the financial needs of both the parties; their standard of living; both parties’ income, earnings, and income earning abilities from any source; and any debt obligations the parties have.

A district court judge who has jurisdiction can hear an application for post-separation support at any time; however, the time of application for support must be reasonable compared to the time of the order. For example, an order for post-separation support entered in 2016 could be seen as unreasonable if the original application was filed in 2012. Also, a court does not have to have a full trial to award post-separation support – a judge need only find the facts from evidence presented in the form of affidavits, pleadings, etc.

An order for post-separation support will terminate if the parties resume their marriage, the dependent spouse remarries, the dependent spouse begins living with another adult in a private heterosexual or homosexual relationship, or the dependent or supporting spouse dies.

The purpose of the alimony recapture rule is to prevent a supporting spouse whose divorce occurs at the end of the year from making deductible property settlements at the beginning of the year. This rule only applies to the supporting spouse when the alimony payments decrease or stop completely during the first three calendar years.

An indignity is conduct that makes the other spouse’s condition intolerable and life burdensome. Indignities may consist of unmerited reproach, studied neglect, abusive language, and other manifestations of settled hate and estrangement. Facts supporting an allegation of indignities must be developed on a case-by-case basis because each individual has a different level of tolerance for misbehavior by a spouse. Indignities must be a conduct or continued treatment that persisted over a period of time. Under North Carolina law, isolated instances of bad or unpleasant conduct do not constitute a sufficient pattern of conduct to amount to indignities.

A party who has been accused of certain marital faults can use common law affirmative defenses to fault allegations. These defenses have technical names: condonation, connivance, collusion and recrimination. The most commonly used of these defenses is condonation, meaning forgiveness of the particular fault. For example, if your spouse has engaged in a sexual affair, and then you have sex with your spouse knowing about the affair, in the eyes of the law, you may have forgiven or “condoned” the fault. These defenses must be detailed with particularity to inform the opposing party of the events that you intend to prove.

Abandonment occurs when a spouse brings cohabitation to an end without justification, without the consent of the other spouse, and without the intent of renewing cohabitation. All three of these elements must be proven by the spouse seeking to show the other spouse’s abandonment. A spouse can be justified in leaving another spouse if the withdrawing spouse can show that they can’t continue the marital relation with safety, health, and self-respect.

North Carolina cases also recognize constructive abandonment as marital fault. Constructive abandonment arises when the other spouse does not physically leave the home but, rather, commits affirmative acts of cruelty/neglect or other willful failure to fulfill the obligations of marriage. In fact, this may force the dependent spouse to leave the home. Understand that the dependent spouse who is forced to leave the home by the other spouse’s misconduct does not abandon the injuring spouse but has, rather, been constructively abandoned.

Illicit sexual behavior, formally known as adultery and unnatural sex acts, is a North Carolina fault ground. Adultery itself can be proven through a showing of an outside relationship by the cheating spouse. Proof of this fault ground requires a showing of something more than an “opportunity” for your spouse to engage in illicit sexual behavior. Opportunity is nothing more than your spouse and their forbidden significant other being alone and unsupervised. If you don’t have an inclination of a more romantic encounter, you may not have enough to prove any illicit sexual behavior.

Malicious turning out of doors is a part of willful abandonment and is proved by the same basic facts. Essentially, it means one spouse has been either emotionally or physically abandoned.

Marital fault in North Carolina can consist of illicit sexual behavior (sexual acts voluntarily engaged in with someone other than your spouse), involuntary separation of the spouses as a result of a criminal act committed prior to the alimony proceeding, abandonment, malicious turning out of doors (a subset of willful abandonment), cruel or barbarous treatment endangering the life of the other spouse, reckless spending, waste, concealment of assets, substance abuse, willful failure to support the other spouse financially, and any indignities that would render life with the other spouse intolerable. Despite having these enumerated fault grounds, you no longer have to show that your spouse is at fault when seeking post-separation support or alimony from your spouse.

A spouse used to be labeled as a “spendthrift” spouse. A spendthrift, is a person who spends money liberally and carelessly. Being a spendthrift is now only part of determining “reckless spending.” Now, the standard includes the destruction, waste, diversion or concealment of assets as well.

In considering the “condition” of the parties involved, the court considers age, health, physical wellbeing, and other similar factors. The parties’ standard of living will also be assessed to assist in determining the amount of alimony that should be awarded to the dependent spouse to keep him or her in the financial standing that he or she experienced during the marriage. Reasonable needs of the dependent spouse, such as food, clothing, and shelter, are also considered.

You and your spouse have the right to a jury trial to determine who is at fault in an alimony proceeding. However, only a judge can decide dependency issues and the amount of alimony to award. When bringing a claim for post-separation support or alimony, the parties must still be married at the time the action is filed, but a pending alimony action is still valid if an absolute divorce becomes final during the process. One exception to this rule is in the case of a foreign divorce. When a divorce is obtained without personal jurisdiction over the dependent spouse, the dependent spouse can still seek alimony after the divorce has been finalized.

Post-separation support and alimony are available to dependent spouses without a showing of fault on behalf of the supporting spouse. Fault on behalf of the dependent spouse, however, can bar that spouse from an alimony award. For example, if the dependent spouse (and not the supporting spouse) participated in illicit sexual behavior, the dependent spouse can lose his or her entitlement to alimony (but not post-separation support).

Determining who is the dependent spouse and who is the supporting spouse is an essential part of a post-separation or alimony complaint. A dependent spouse is typically a spouse who makes less money than the supporting spouse and is actually substantially dependent on the other spouse for maintenance and support. The supporting spouse is the spouse who provides the majority of the marital income. To determine dependency, the courts will look at the accustomed standard of living of the parties in years prior to separation and whether the dependent spouse can maintain that standard without depleting his or her individual assets.

North Carolina allows financially dependent spouses to receive post-separation support and alimony from another spouse, regardless of whether that spouse is at fault or not. Under the current N.C. laws, however, marital fault can still be an important factor in considering the dependent spouse’s right to alimony. In situations where the dependent spouse has participated in illicit sexual behavior, and the supporting spouse hasn’t committed a similar act, the dependent spouse loses his claim to alimony. The dependent spouse at fault may still have a claim for post-separation support.

In a claim for alimony or post-separation support, the claim must establish that the spouse submitting the complaint is the dependent spouse and the other, the supporting spouse. A dependent spouse is a husband or wife who is “actually substantially dependent on the other spouse for maintenance or one who is substantially in need of maintenance and support from the other spouse.” A supporting spouse is considered to be the spouse who provides the dependent spouse’s income.

Finding that one spouse is actually dependent is not required to be awarded alimony. In determining a spouse’s need, the court will look to the parties’ standard of living.

Alimony is payment for support and maintenance by a “supporting spouse” to a “dependent spouse.” Generally, the dependent spouse is the spouse who makes less money than the supporting, higher-income spouse. Alimony can be paid in lump sums or continuously through periodic payments. The amount of alimony to be paid and how it will be paid can either be determined via court order or decided privately through a separation agreement.

Whether alimony is being determined in court or through private agreement, it is best to be knowledgeable about the statutes governing alimony in North Carolina to bring a level of ease to the process and hopefully avoid tension. North Carolina General Statute 50-16.3 explains who is entitled to alimony and how the courts reach decisions regarding alimony. This statute will help you understand your rights and what the court is looking for. It would be in your best interest to maintain a clear, detailed and easily accessible history of your financial affairs and the assets you and your spouse held in order to assist the court with your case.

Below is a list of factors the courts may consider in determining alimony:

1. The marital misconduct of either of the spouses. (Includes illicit sexual behavior, abandonment, constructive abandonment, cruel or barbarous treatment endangering the life of the other spouse, such indignities as to render the condition of the other spouse intolerable and life burdensome, reckless spending of the income of either party, substance/alcohol abuse, willful failure to provide maintenance and support, and involuntary separation of the spouses in consequence of a criminal act committed prior to the proceeding in which alimony is sought.)

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 earnings, dividends, and benefits such as medical, retirement, insurance, and Social Security.

5. The duration of the marriage.

6. The contribution by one spouse to the education, training or increased earning power of the other.

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 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.

In dividing property within one year of separation or divorce, the money received as a result of that division is not taxable. Property transferred within that one year between spouses is seen as a result of the separation or divorce. If the transfer of property occurs after one year, the court will assume the transfer of property was not as a result of the separation or divorce, and therefore, would be taxable.

If you can show that the transfer of money was a result of a division of property even though it was more than one year after separation or divorce, the money in question will not be taxable. Also, if one spouse is a non-resident alien, the transfers of property are taxable to prevent the avoidance of U.S. taxes on a later sale by the non-resident alien. Alimony and child support are not part of the distribution of property.

A spouse may be able to protect their property prior to the final order of distribution.  There are special provisions related to Equitable Distribution that will allow a judge to enter either a temporary order on property distribution or an injunction if there is concern about the disappearance, waste or conversion of property in the possession of one party.  Those same provisions also give the judge the ability to enter an order to divide and distribute part of the property before a final equitable distribution determination is made.  An order for partial distribution can only be made after the equitable distribution action has been filed, while an injunction may be granted before an equitable distribution action has been filed in order to protect the property.

Some property may have characteristics of both marital and separate property. Some examples of dual classification would be where the earnings of one spouse are applied to the separate property of the other spouse or where separate property is improved during the marriage, or where one spouse manages the separate property of the other and such efforts significantly increased the value of the property.

The distribution of marital property must be done without regard to alimony and child support.

Generally, one party cannot recover attorney’s fees from the other party during an equitable distribution case. There is, however, one exception to this rule, which allows reasonable attorney’s fees to be awarded. If one spouse sues to retake property that solely belongs to him or her and that property was taken from the marital home by the other spouse, attorney’s fees can be recovered in that action.

Once an absolute divorce is granted, a spouse can no longer bring a claim for equitable distribution. Only claims pending at the time the divorce is granted will be considered.

The right to bring an equitable distribution claim is created at the time the spouses separate.  However, that right must actually be asserted by one of the spouses in order to be considered.

Once the property has been identified, the judge will need to value that property.  This means the judge will assign a fair market value to all marital property in order to aid in the distribution process.  Often, this will require using an appraiser or other expert to determine the amount a buyer would pay to a seller if the property were listed for sale.  The value of the property must be set as of the date of separation.  Any liens or encumbrances on a particular piece of property will be deducted from the value, in order to obtain a net value.  That net value is what the court will be dividing between the spouses.

Identification means that the judge will determine whether one spouse or the other or both have a claim of ownership to a particular piece of property. This will allow the judge to determine the extent of each spouse’s interest in the property.

First, the judge will identify and classify the property. Once the property has been identified, the judge will then value the property. Finally, the judge will decide how to actually distribute the property in a fair and equitable manner.

In classifying the property, the judge must consider when and how the property was obtained. Property is considered to be acquired when payment for the property is made, regardless of when title to the property actually passes.  Any increases in the value of separate property, if those increases are attributable to the action or contribution of one or both spouses, will be shared by the spouses at equitable distribution. Any increase in value of separate property will be traced using the “source of funds” rule to determine whether that increase is considered separate or marital property.

A QDRO stands for Qualified Domestic Relations Order. In order to effectively divide a qualified plan – including pension plans, profit-sharing plans, and 401(k) plans – the court must enter a QDRO. Even if your separation agreement or divorce decree states that you are entitled to a portion of your spouse’s retirement, you will not receive the benefits of that plan without a QDRO signed by a judge.

If you are seeking to divide a non-qualified plan, such as an individual retirement account or an annuity, you will not need a QDRO. QDROs protect the ex-spouse receiving a share of the pension in that they prevent the employee spouse from disposing of the other spouse’s share. A QDRO also ensures that each spouse receiving a portion of the pension or retirement becomes responsible for his or her individual share of the income taxes due on that money.

The survival of you and your spouse is one factor that can influence equitable distribution. If a spouse passes away before an absolute divorce is granted, but while a claim is pending, that pending claim will be barred. If, however, a spouse dies after a divorce has been granted and the equitable distribution claim is still pending, equitable distribution will not be barred. In such a case, the administrator or executor of the deceased spouse’s estate and any heirs whose interests would be affected by the equitable distribution action must be joined in the pending action. If the heirs are not joined, then any order of sale of real property is void as to those heirs.

If you and your spouse have a properly executed agreement on how property will be divided, that agreement might bar a subsequent equitable distribution claim. Not only will a property settlement agreement bar an equitable distribution claim, but written premarital and postnuptial agreements may also cause a bar.

Although equitable distribution presumes that an equal split of the marital property between the spouses will be fair, and most judges in North Carolina favor an equal split, a spouse can make an argument for unequal distribution.  Because the parties must present evidence to support an unequal distribution, and because most cases lack facts to actually support that, most cases result in an equal division of property.  Additionally, most cases that settle result in an equal division of property, unless the spouses can agree otherwise.

Some property cannot be classified as either marital or separate property.  Any property that is acquired after the date of separation doesn’t fit within the definitions of either marital or separate property.  In those cases, that property must be treated as a factor in the distribution of other property.

Once the judge identifies the property, the property will then need to be classified as either marital or separate. The classification process must be supported by both evidence and findings of fact by the judge.

Although the equitable distribution rule presumes that an equal split of the marital property between the spouses will be fair, and most judges in the state favor an equal split, a spouse can make an argument for unequal distribution.  There are numerous factors outlined the statute on equitable distribution that a judge can use to justify an unequal division of the marital property.  In order for a judge to consider those factors, one of the parties must present actual evidence to the judge on that factor. Among the factors a judge may consider are the following:

• The income, separate property, and debts of each spouse at the time of the division
• Any alimony or support orders against one spouse from a previous marriage
• The length of the marriage and the age and relative health of each spouse
• Which spouse has custody of any children and their potential need to stay in the home for the children
• Any future expectation of retirement benefits that haven’t vested at the time of separation
• Any effort made by one spouse to acquire a particular piece of property
• The effort and support provided by one spouse to the education or career of the other
• Any efforts or contribution by one spouse to increase the value of separate property of the other spouse
• How easy it would be to divide the martial of state into liquid assets
• Any interest in a business and the difficulty of valuing and dividing that interest
• Tax repercussions of property division
• Any actions by either spouse to decrease the value of marital property after the separation
• Any other factor the judge considers to be relevant and proper

In North Carolina, the process by which property is divided when spouses get divorced is called Equitable Distribution.  If a judge is making the final determination about property division, the final order may come before or after the divorce is granted.  While the final judgment on equitable distribution is pending, the spouse who has possession of a particular piece of property will have use of that property.

Property includes the items and things people own, or their assets, as well as their debts.  Any assets and debts that were obtained during marriage and are still owned by the spouses when they separate are considered in the equitable distribution decision.  The assets and debts will be valued to assign a net value to the marital estate.  If a marital estate happens to have a negative value, then each spouse will be responsible for a portion of that debt, depending upon how the judge makes the equitable distribution determination.

Marital property is defined in section 50-20(b)(1) of the General Statutes of North Carolina. Essentially, marital property includes property obtained during the marriage and before separation, regardless of whether it is obtained by one or both spouses. Anything that is not considered separate property, if presently owned on the date of separation, will be considered marital property and subject to equitable distribution. Presently owned refers both to the time of ownership and the right of ownership.  The time of ownership means that one or both of the spouses has some ownership interest in the property on the date they separate. If one of the spouses has taken marital property without accounting for it, the ownership time may even be before the date of separation. The right of ownership portion of presently owned property refers to the interest a party can claim in the property, despite who actually possesses the property, holds title to the property, or any interests that may be claimed by others.  There is also a presumption contained in the statutes that all property obtained after the parties are married and owned before the parties separate is considered marital property, unless specifically defined as separate property by statute or rebutted by a preponderance of evidence.

Separate property is defined in section 50-20(b)(2) of the General Statutes of North Carolina, but essentially, separate property is any property that one spouse owned before the marriage.  It also includes property inherited by only one spouse and gifts to only one spouse. Whether or not the inheritance or gift is acquired by one spouse during the marriage, it is considered separate property and is not subject to equitable distribution. However, a gift from one spouse to the other during the marriage will be considered marital property, unless the intention for it to be separate is expressly stated.  Professional and business licenses, such as a medical or law license, which would terminate if ever transferred, are considered separate property. Any income received from separate property or increase in value in separate property remains separate property.  However, the increase in income in separate property must be a passive increase, resulting from market factors, inflation, or action by someone other than one of the spouses. If the increase in income can be attributed to the active effort or contribution of one or both of the spouses, then that increase in value is considered marital property. If separate property is exchanged for a different piece of property, the new piece of property remains separate, even if both spouses are on title unless the intention for the property to become marital property is expressly stated in the exchange.  However, if separate property is used to purchase real estate and both spouses are listed on the title, that is generally interpreted as being a gift of separate property to the marital estate, which then becomes marital property.  That interpretation can be rebutted only by clear and convincing evidence.

Defenses that can be used against equitable distribution include: absolute divorce, a prior property settlement, reconciliation, death, and federal law.

Many times, you won’t incur a tax liability when selling the marital home during a property division, and there are ways to ensure that you avoid those tax implications. First, the property you are selling must be your principal dwelling. You can claim several homes as a principal dwelling, giving you the ability to make a tax-free gain on several properties. A house must meet an ownership test set forth by the IRS in order for it to be considered a principal dwelling. Only one spouse has to meet the requirements of the ownership test when a couple attempts to make a tax-free sell; therefore, if you owned a home for the last two years, but you just added your new husband to the title when you got married six months ago, that home can still qualify under the ownership test. However, both spouses must pass the use test of living in the residence for two years. Note that the shared use does not have to take place during the marriage. If you and your now-husband shared the home for 1½ years before tying the knot and then six months as newlyweds, the IRS will allow you to claim the exemption. Military personnel are exempt from the two-year use requirement.

Once you and your spouse have sold a marital property, you must determine, based on profits, whether there are tax implications. If you sell your home for $2 million, you may not have a tax implication if your profit portion isn’t more than $250,000 if you file alone and $500,000 if you file together. You are allowed to add the cost of improvements to offset your gain and lower your profit margin. If you sell your home with a profit margin exceeding the above-mentioned limits, you may still be eligible for tax-free gain if you sold your home for a change in health, employment, or unforeseen circumstances. Before selling your marital home, it is best to seek advice from your attorney and tax advisor.

In the past, reconciliation would void property provisions within a separation agreement. Now, the courts draw a line between pure separation agreements and contracts for the purpose of dividing property, i.e. property settlements. Property settlements are construed according to the intent of the parties and the language used in the contract. Reconciliation would cancel out a release of property rights only if the release of those rights in such a property settlement “necessarily” depended on the parties living separate and apart.

States have the general authority to handle family law matters, including equitable distribution. However, there are times when federal law can take precedence over state equitable distribution law. One such occasion is in the distribution of Social Security benefits. Federal Social Security laws, not North Carolina state law, govern the distribution of these benefits. Similarly, state equitable distribution laws do not govern veteran’s disability benefits. Servicemen’s retirement pay is distributed following the language of the Uniformed Services Former Spouses’ Protection Act and G.S. 50-20(b)(1).

If you and your spouse can agree on how to divide your property, then you can enter into a separation agreement.  That agreement will document the property division that you and your spouse have agreed on.  However, if you and your spouse cannot agree on how your property will be divided, you will have to turn to the court for a judge to make that determination.

Although the judge can consider any factor they determine to be relevant and proper, fault is not relevant in the equitable distribution decision, unless that fault is related to decreasing the value of marital property.

You and your spouse cannot split a dependency exemption in the same year. Only one parent can claim the child as a dependent in any given year. One way for parents to share the exemption is to alternate each year in claiming the child. Another option is for parents of multiple children to “split the children.” For example: one parent can claim one child each year, and another parent can claim the other child each year.

North Carolina courts are permitted to award reasonable attorney’s fees in connection with an award of alimony and post-separation awards. Attorney’s fees can be awarded in an original proceeding or during an appeal process. In general, a dependent spouse will receive attorney’s fees from a supporting spouse where alimony is appropriate.

Post-separation support, alimony, and attorney’s fees can be waived if there is a valid separation agreement between you and your spouse that contains an expressed provision to waive said financial obligations. However, if the absence of such spousal support causes financial hardship in a dependent spouse as to make that spouse eligible for public assistance, the court can ignore a waiver and require spousal support via alimony, attorney’s fees, and post-separation support. In order for a judge to go against an expressed waiver of support provided in a separation agreement, the court must find dependency as well as the factors required to receive post-separation or alimony.

Dividing retirement can be a complicated process that involves tax penalties, but if the retirement plan is a qualified employ plan, such as a 401(k) or pension that receives contributions from the employer, a Qualified Domestic Relations Order can be the solution for a tax-free division. A QDRO is a legal document signed by a judge that instructs an administrator of a retirement account to separate and withdraw from the account without incurring a tax penalty. The funds withdrawn from a divided account will be placed in a new retirement account.

Spouses enjoy a unique protection that prevents them from having to report a transfer of property as a loss or gain. Any provision in a document enumerating the details of property transfers will state that the transfer is tax-free. In the absence of such a provision, there is a presumption that the transfer was as a result of a divorce and is, therefore, tax-free.

The IRS has mandated that child support payments are never taxable nor are they deductible.

If certain criteria are met, alimony is deductible by the spouse paying the alimony and reportable as income to the dependent spouse under federal and state tax laws. The alimony payments must be in cash and not in-kind, and the payments must be made in connection to a divorce or a separation agreement. Also, the parties must not have designated the payments as non-alimony payments, the parties cannot be living in the same household, and the payor cannot be obligated to make payments after the death of the dependent spouse.

You and your spouse may privately agree that the tax consequences or benefits of alimony shall not apply. However, if by private stipulation, you create alimony payments that do not meet the above stated criteria, the paying spouse may not later try to obtain a tax deduction for the alimony payments. In some circumstances, a paying spouse may later be required to relinquish that deduction and include, as income, a portion of the alimony previously paid. This result can occur when the IRS believes that spouses are attempting to disguise property settlements as alimony payments in order to receive a more favorable tax treatment.

Similarly, spouses should be aware of the recapture rule. Under this rule, a spouse paying alimony will be required to recapture any excess alimony paid during the first three years of separation. The three-year time period begins when the paying spouse begins paying alimony.

The formula for the recapture rule is extremely complex. In general, if the amount of alimony paid in year three, plus $15,000, is less than the amount of alimony paid in year two, the excess will be recaptured. In addition, if a comparison of the first year’s payment to the average of payments made in years two and three show that the average of years two and three, plus $15,000, is less than the amount paid in year one, the excess amount will again be recaptured.

The spouse who paid the excess amount would then have to include that amount in his or her income and pay taxes on it. The spouse receiving the excess amount would get to take a corresponding deduction. This tricky tax pitfall catches many divorcees off-guard and should be discussed with an attorney and a tax advisor.

The alimony recapture rule only applies to the paying spouse when alimony payments decrease substantially or end during the first three calendar years. This rule is intended to prevent payors whose divorces occur near the end of the year from making deductible property settlements at the beginning of the year.

Under the recapture rule, a spouse paying alimony will be required to recapture any excess alimony paid during the first three years of separation. The three-year time period begins when the paying spouse begins paying alimony.

The formula for the recapture rule is extremely complex. In general, if the amount of alimony paid in year three, plus $15,000, is less than the amount of alimony paid in year two, the excess will be recaptured. In addition, if a comparison of the first year’s payment to the average of payments made in years two and three show that the average of years two and three, plus $15,000, is less than the amount paid in year one, the excess amount will again be recaptured.

The spouse who paid the excess amount would then have to include that amount in his or her income and pay taxes on it. The spouse receiving the excess amount would get to take a corresponding deduction.

Yes, it is possible to modify child support under the following two circumstances:

1. If child support is part of a court order, it is your sole responsibility to demonstrate, with concrete evidence, how things have changed since the previous order. You should present evidence that will reveal vividly that your business has been going through some hard time, making it impossible for you to provide the same amount of child support as before.
2. In the case of child support agreed upon in a separation agreement, it may be a bit difficult to sway the court into accepting less child support. The notion is that the child support that was first agreed upon, without the involvement of the court, was considered to be the average financial support that the child needs. However, in the face of persistent financial hardships due to poor business performance, a parent can still apply for a change in the child support.

It is the dream of every entrepreneur to see their businesses succeed one day. You don’t have to be afraid whether, after obtaining separation agreement and having your property equitably distributed between you and your former spouse, that he or she is going to show up from nowhere to ask for more money after your businesses have flourished.

Pay attention to the following facts:

First, your property settlement has been completed and it cannot be modified. So, your former spouse isn’t allowed to renegotiate that.

Second, it is possible for your former spouse to ask for more alimony. There are issues that must be addressed here: How much was she spending when you were still married? And if it is less than the current alimony, are you financially buoyant enough to give her a living alimony? Since your businesses have just progressed, your former spouse may win a review of her alimony based on these reasons.

Third, a judge may consider your former spouse’s plea for an increase in her alimony if her expenses have correspondingly increased over the years.

Also, if you leave, you might not be able to go back until the court officially divides the property. This can take a long time and you might not be awarded the house in the end. So, until you’ve spoken with a lawyer, you should stay in the house if possible. However, do not stay in the house if your spouse is violent. Call the police and they will help you take the needed steps to protect yourself and your children.

Many entrepreneurs often wonder how much settlement their spouses can lay claim to for businesses they have started long before they got married. If you find yourself in this situation, and without a well-defined prenuptial agreement, your spouse can benefit from your business through these three strategic pathways:

• If you input marital capital into your business after marriage, then your spouse is entitled to some of the value of these funds.
• If your spouse contributed to the growth of the business by sacrificing her labor, expertise and time, he or she could be entitled to a portion of your business value.
• If your spouse offers any other supports that eventually make your business thrive, he or she is entitled to some of your business value.

Even though your business and the value it generates may be defined as your separate property, your spouse could still seek equitable distribution of some portions of your business through the three pathways described above. However, this does not indicate that your spouse has an ownership interest in the business.

Divorce is never an easy thing to go through. It is one of the most difficult things for a family, but also a person, and the things that must be done in a divorce are quite long. There are always things like custody agreements and dividing the house, but what if there is a business? When there is a divorce between a couple who own a business, there is more that must be done to ensure that the business is divided properly.

As part of any divorce, a court will classify a property as either a separate property or a marital property. Once this is determined, it will determine how best to distribute everything. The value of this business will be based on fair market value at the time of the divorce. The fair market value can be easy to determine in some cases, but in others it is going to be very complicated and must be done by a professional.

Looking at separate versus marital, if a business interest was acquired jointly when the marriage was still happening, with funds from both parties, then it is going to be a marital property. That means that the value of the business must be shared by both individuals. If the business interest was made before the marriage, or with separate funds, it is separate property.

There is some difficulty in valuation, in order to determine how much each spouse is going to get. In many cases, the couple may just agree on a simple dollar value and that does make things a lot easier. The best thing that can be done is have an expert look at the value of the business and for you and your spouse to have a 50/50 split if it is marital property.

To value a business interest, a simple formula is often used. You take assets and you subtract the liabilities from that. This will give you the value. If the assets are worth $200,000 and the liabilities are $50,000, then the asset value of the business is going to be $150,000.

What about who values the business interest? If the business interest is small, then the parties can just determine the worth and the division as long as there is no dispute over it. Attorneys can also place a value on the business if the value of the business is small and not too complex.

If things are larger and more complicated, then you need to have an expert like a Certified Public Accountant, a Certified Senior Appraiser, or a Certified Business Appraiser. They will be able to go through the details and get a proper value on the business so that the division is fair for everyone.

Remember though, by hiring an expert, the legal fees are going to increase immensely. So if things can be determined without an expert, that is always a good option to consider. The easier something is, the cheaper it is going to be.

It is not advisable to hide income during divorce proceedings, whether it is for the purpose of dodging full child support or alimony obligations or even for getting a juicy property distribution settlement. As an entrepreneur, your business may provide some loopholes through which you could somehow hide your income. But do not fall for this dangerous temptation!

It is a fact that your income will be subjected to rigorous scrutiny during divorce. And if your act of hiding income is discovered by the financial experts and attorneys perusing your financial records, you may be sanctioned and ordered to reimburse your spouse’s attorney’s fees. The judge will possibly doubt your integrity throughout the divorce proceedings.

This could lead to a bigger headache for you in case the information on your tax returns is completely different from the discoveries made on your financial records. IRS may be prompted to audit your account, and if you have failed to adequately declare your income to the IRS, you may be fined or even prosecuted. Providing deceitful income information to the IRS is a felony case.

If you are a very busy entrepreneur who has irregular working schedules, the idea of sticking to a traditional custody schedule may be a nightmare. Don’t worry!

Even though traditional custody schedules are a kind of week-on/week-off model, including holiday visitations (on Father’s or Mother’s Day) or every-other-weekend visitation, you can always find your way around these strict schedules.

After securing a custody agreement, you can design a more relaxed custody schedule for yourself. Let’s assume your business is seasonal and always busy in some months, say March and April. You can arrange to have fewer visitations in those months and have more in other months, say December and January, when you are less busy.

If you work on most weekday evenings, you can make an alternative arrangement to spend the mornings with your children: Bring them in for breakfast and take them to school thereafter.

Entrepreneurs are known to be the architects of their own schedules; this indicates that you have the freedom, on some occasions, to adjust your working schedules to meet your children’s. Their wellbeing should be something you attach great importance to, beside your businesses.

It is not rare in court for non-entrepreneur spouses to disagree with their entrepreneur spouses about the income figures put forward to estimate child support.  In a bid to get more money, the non-entrepreneur spouse may put pressure on the court to urge their entrepreneur spouses to declare the exact amount of money they earned in a year.

This sometimes brings serious confusion into divorce proceedings because, unlike a salaried spouse, it is intricately complicated to calculate an entrepreneur spouse’s actual salary.

If you are confronted with this dilemma, there are two obvious options you can adopt to resolve this:

• Hire a forensic accountant to independently investigate your actual earnings in a year. You will have to supply all the necessary documents for the accountant to fairly do his/her job.
• If your spouse still has some doubts about the outcome of your forensic accountant’s investigation, he or she may hire his/her own investigator.

But if after both investigations are completed and there is still a huge discrepancy in your income figures, this may make your income become an object of litigation. However, you have to stand by your forensic accountant’s estimation throughout the proceedings.

As an entrepreneur, your business may require a lot of traveling, whether to purchase or sell goods, meet investors or partners or participate in meetings or trade shows. It is a fact that your incessant traveling obligations may affect your custody right as a parent, if you have a child.

These are the three main reasons why you may find it difficult to secure enough visitation from the judge:

• A workable schedule: You may not be successful in convincing a judge to grant you a visitation right when your business creates an irregular schedule for you. In other words, if your business requires that you travel three weeks in a month, you will not be able to get every-other-week visitation. And if you go to trade shows or expos on weekends, you will also not be granted every-other-weekend visitation schedule.
• Following your child’s schedule: Before approving your visitation schedule, a judge will first of all consider your child’s schedule and compare it with yours to see if there could be a workable visitation schedule for you. And your chance of getting more visitation dwindles if you are a jet setter.
• Your former spouse’s effect: This may make you feel a bit uncomfortable, but it is the reality. The judge has no any other option than to award your former spouse more custody, if she is always around while you are away on many business trips.

What you can do to get more visitation or custody: Divorce proceedings have opened the eyes of many entrepreneurs to what they could lose if they do not cut back on their many travels and stay with their kids. If you are able to reduce the number of days or weeks you spend away from your children, you may contact the judge for custody modification. This will leave you with more visitation or custody once the judge has ascertained that you will be there for your kids and take good care of them.

Many people struggle to understand why their spouse is entitled to any portion of their retirement plan, but the truth is, retirement plans are subject to equitable distribution just like any other asset. Anything you earn during the course of your marriage is considered marital property that can be subject to division. Everything from bank accounts to personal property, timeshares, and even frequent flyer miles are considered marital property that will be divided during equitable distribution. Assets, including retirement, earned prior to the date of marriage aren’t considered marital property. Finally, assets earned after the date of separation will also be excluded in the division of marital property.

It’s best that an attorney draft the QDRO (Qualified Domestic Relations Order) in order to avoid costly mistakes. The spouse receiving funds by way of a QDRO is typically the spouse who pays the legal fees to have the Order drafted, and that spouse’s attorney usually conducts all of the legal work associated with drafting and filing the QDRO. In order to avoid the legal fees associated with drafting a complex QDRO, a spouse entitled to the retirement funds may accept other assets to supplant the retirement assets. For example: if a wife is entitled to $100,000 from her husband’s qualified 401(k), she might prefer to take a lump sum in that amount from a non-retirement account, or even receive an asset worth $100,000. That way, the wife will still receive the full $100,00 that she’s owed and she avoids paying her attorney to draft a QDRO.

QDRO stands for Qualified Domestic Relations Order. This is a legal instrument signed by a judge that allows a spouse to assign their rights in a retirement plan to another spouse. In order to avoid a tax penalty and effectively divide a qualified plan – including pension plans, profit-sharing plans, and 401(k) plans – the Court must enter a QDRO. Without a QDRO, a withdrawal from such a plan would trigger a tax event.

An attorney should draft a QDRO to include specific language instructing the plan administrator as to how the funds should be dispersed. The QDRO must include: the name of the plan, the name and last known mailing address of the participant, the name and mailing address of the participant, the name and mailing address of the alternate payee (spouse of employee), the amount to be paid, the manner in which the payment is to be determined, and the number of payments or period to which the order applies. Once drafted, the QDRO will be submitted to the court for judge’s signature, and it will subsequently be sent to the plan administrator.

Military retirement earned during the course of the marriage is considered marital property, which is fair game in equitable distribution. In order for a non-military spouse to receive payments from the federal government, a “10/10” requirement must be met. The spouses must have been married for at least 10 years during the period in which the military-spouse was on active duty. It is important to note, that even if the 10/10 requirement is not met, military retirement is still subject to division. This requirement only places a limitation to non-military spouses receiving payments directly from the federal government.

Withdrawing funds from your retirement account in order to give a portion to your former spouse will create tax implications; however, there are ways to divide a retirement account without a tax penalty.

In dividing an IRA, the division must reflect that it is actually a transfer or “rollover” of funds to your former spouse. By structuring such a transaction as a transfer, you will be able to avoid tax consequences. In order for your former spouse to avoid classifying the transfer as taxable income, the transfer should be deposited into an IRA account or other eligible retirement account.

If you are dividing qualified employer plans such as 401(k)s, pensions, and SEP IRAs, the best way to ensure that transferring all or a portion of the funds to a former spouse doesn’t result in tax penalties is to obtain a Qualified Domestic Relations Order (QDRO). A QDRO is a legal instrument, signed by a judge, that allows for a person to assign rights in a retirement account to another person. Once again, the funds received by the former spouse must be deposited into another retirement account to avoid any tax consequences. The order itself will be sent to a plan administrator, and it will instruct the administrator as to how the funds are to be dispersed.

Non-qualified plans, plans that aren’t required to adhere to ERISA, are usually reserved for high-ranking and highly paid employees. These plans are typically not assignable to a spouse and aren’t affected by a QDRO. For these plans, the spouse entitled to a portion of the plan should receive the value she is entitled to in other ways, or enter into an agreement which prescribes a transfer to take place once the employee-spouse actually receives payment from the plan (usually at retirement).

Whether your spouse’s retirement is a defined benefit or a defined contribution plan matters when it comes to calculating the value of the plan – a necessary step in equitable distribution. Because of the differences in the two plans, the plans are valued differently in terms of equitable distribution.

A defined contribution plan is designed so that the employee and/or employer make regular contributions to the plan. For example: with a 401(k), a percentage of an employee’s paycheck is deposited into the plan, and the employer matches each contribution. A defined benefit plan, on the other hand, is a type of pension plan in which an employer agrees to pay a specified monthly benefit upon retirement that is predetermined by a formula based on the employee’s earnings history, years of service, and age.

For a defined contribution plan, there is a simple math equation, known as the coverture fraction, which helps determine how much of the plan is marital. You would divide the length of time a spouse was simultaneously married and contributing to the pension plan by the total length of employment during which the pension was earned.

Finding the value of a defined benefit plan is more complex. For these plans, the amount paid at retirement is typically based on the salary of the employee’s last years of work. In situations where the salary of a spouse’s last years of work have yet to be determined, the courts will apply a five-step process to determine the value of a defined benefit plan.

The court will first determine the earliest date that the spouse can retire. Then the court will determine the life expectancy at the date of separation to determine how many months the employee-spouse will get the benefits. Next, the value of the pension at the earliest retirement date is established. Then, the value to the date of separation is discounted (figure out the future value and discount that value to the date of separation), and finally the court will determine any contingencies that may occur and discount the value further.

There are several scenarios and factors that could lead to your spouse getting more than 50 percent of your retirement plan. One reason your spouse could end up taking more than half of your retirement is if the other marital assets involved are either minimal or unavailable. For example: you and your spouse could be splitting your assets on a 50/50 basis, but if a large portion of your assets is a business interest that you aren’t willing to sell, you may opt to give a larger portion of your retirement plan to your spouse in order to adhere to a 50/50 split without involving your business interest.

If you and your spouse are able to handle your equitable distribution issues through a separation agreement, the agreement can reflect the needs of you and your spouse as you two see fit. If you desire, you can agree to keep your retirement plans intact and account for what you owe with other assets. You and your spouse can also agree to keep your retirement savings out of the equitable distribution calculation.

Deciding to keep retirement accounts out of the separation agreement is an ideal approach in situations where the retirement plans are comparable or minimal. If one spouse has a much larger retirement account, that asset will usually be incorporated into an agreement for equitable distribution.

Both parents must give consent in order to change a minor child’s last name. There are, however, exceptions to this rule. If the non-custodial parent has abandoned the child and the custodial parent gives consent, the child’s last name can be changed. Also, if the child has reached the age of 16 or if the other parent is deceased, consent of both parents isn’t necessary.

If a natural parent is fit for custody, they are entitled to the custody and care of their child unless that decision is not in the best interest of the child. Where the relationship between the child and a non-parent is better for the welfare of the child, a judge may award custody to the non-parent.

In North Carolina, it is possible to receive a temporary order for the custody and support of a child. Temporary custody orders can be granted to: provide continuing stability in a deteriorating situation; preserve the status quo; prevent a child’s removal from the jurisdiction; return the child to an appropriate custodian; and/or to protect the child from harm, neglect or abuse.

Emergency temporary orders may be entered with only one party present in court, or “ex parte.” Ex parte means that only one side tells the court its version of events while the other party is unavailable to address the court. Because an ex parte hearing can violate the due process rights of an absent party, the court must review a temporary emergency custody order within 10 days, giving the other side the opportunity to present his or her own evidence. After the court has heard the evidence from each side, the order will be continued (kept in force), modified, or terminated (dissolved).

You cannot revoke visitation from a spouse that doesn’t pay child support. Child support and visitation are two legally independent components. For example, if one party has not received the appropriate child support payment, he or she may not decide on his or her own to bar the other parent from any visitation rights. There is no supporting legal foundation for such a move. In addition, such retaliation can have a negative impact on your child.

Natural parents are typically favored over non-parents in awarding custody of a child, but when a custody fight is between both biological parents, there is no presumption of favor for either the mother or father. In the past, courts have favored the mother in a custody dispute with the rational that the mother would be more capable of caring for a young child. This belief was known as the tender years doctrine. While this doctrine has been abolished, North Carolina judges are still more likely to favor the mother when awarding custody of a young child.

In North Carolina, a child of sufficient age is allowed to express their wishes in a custody case; however, the child’s wishes will not be controlling. In determining whether the child is of “sufficient age,” N.C. weighs whether the child has developed the ability to offer a reasoned opinion about where he or she wants to live. While this testimony of a child can be heard in open court, it is often preferable for the interview to be conducted in chambers. An interview between the child and the judge in chambers can be arranged through mutual agreement between the parties.

A judge is not required to agree with a child’s choice of custody. In practice, as the child gets older and especially when the child is a mid-teenager, the judge may place more weight on the child’s own desires, but even then, a child’s choice will not be the determining factor for a judge. The determining factor will remain the best interests of the child.

Sharing joint custody of your child will not prevent you from having to pay child support. Even if both parents share custody equally, one parent will inevitably have to pay child support. Usually, the only way to avoid being required to pay child support is if both parents earn exactly the same income and spend the same amount of time with the children. In North Carolina, the child support guidelines calculate the obligation to pay based on time spent with each parent and the income of each parent. So even if the child spends equal time with each parent, the parent with the higher income will owe child support.

The court will bring to light your parenting skills and daily interactions with your child to determine a custody dispute. Individuals who have close contact with you and your child may be called as witnesses. Also, visuals such as video and photographs of your child’s surroundings, potential neighborhood, and living space while in your custody will be helpful evidence to present to the court. Visuals will help engage the judge and give him or her a greater insight into your side of the custody case. It is imperative to continue being the best parent possible for your child to aid in the potential evidence given during your case.

You and your spouse have the power to set the parameters of your custody agreement, but if you are unable to reach an agreement, a judge can set forth the agreement for you. Judges consider a variety of factors in determining which parent is entitled to custody, including: the age of the child, the time each parent has available to spend with the child, the stability of the parents, efforts by either parent to undermine the other parent, abductions, moves out of state, facilitation of visitation and involvement of the other parent, child abuse and neglect, drug and alcohol problems, religion, non-marital sexual relationships and the preferences of the children. In almost all cases, visitation rights will be granted to parents who aren’t awarded custody. While the natural parents are typically awarded custody, grandparents can also seek custody in situations that warrant such an arrangement.

North Carolina laws allow for you to receive an award for reasonable attorney’s fees if the interested party is found to be acting in good faith and to be unable to cover the cost of the suit. Having to enforce a custody order by means of civil or criminal contempt proceedings will not prevent you from receiving attorney’s fees. Contempt proceedings simply are a remedy for disobedience to a court order.

If you have custody of your child, the non-custodial parent will be ordered to pay child support. The paying spouse will be ordered to pay a percentage of his or her gross monthly income. North Carolina has specific guidelines that govern child support payments, but the court has the ability to deviate from these guidelines.

In preparing yourself to go to court to determine custody, having witnesses available to testify to how you interact with your child and your child’s home life will be beneficial. Potential witnesses include teachers, pediatricians, childcare workers, neighbors, family members, etc. Witnesses who have discussed your child with you and have observed your child for long periods of time will be most helpful in court.

Witnesses who have discussed your child with you and have observed your child for long periods of time will be most helpful in court. Also, it is important that your witnesses have interacted with you and your child recently, preferably in the last three years. Potential witnesses include teachers, pediatricians, childcare workers, neighbors, family members, ministers, etc.

It is important to modify your past behavior and begin practicing positive parenting habits with your child immediately. Your more recent and positive involvement with your child can help overshadow less desirable behavior you’ve displayed in the past. In a custody dispute, it is never too late to become a good parent.

A custody evaluator is an impartial party whose purpose is to interview the parents together and individually as well as observe how each parent interacts with the child. The evaluator may also observe the child’s home life and living conditions proposed by each parent. In addition, the evaluator may administer a few standard psychological tests. It’s important that the custody evaluator is a disinterested third party that hasn’t treated any member of your family in the past. While you have the right to hire your own expert mental health professional, a judge may perceive testimony from your expert as biased and disregard their testimony. Before making the decision to hire your own expert, it is best to consult with an attorney to make sure the decision is actually beneficial to you.

During a custody evaluation, a mental health professional (or a custody evaluator) is hired to assist in determining what custody options would be in the best interest of your child. A custody evaluator is an impartial party whose purpose is to interview the parents together and individually as well as observe how each parent interacts with the child. The evaluator may also observe the child’s home life and living conditions proposed by each parent. In addition, the evaluator may administer a few standard psychological tests. It’s important that the custody evaluator is a disinterested third party that hasn’t treated any member of your family in the past to avoid bias.

You and your spouse will have the opportunity to agree to a custody evaluation if you believe it is in the best interest of the child, or a custody evaluation can be court ordered. Note that there are fees associated with having a custody evaluation done, and you should inquire about fee schedules with various mental health providers prior to making the decision to have an evaluation.

The Parental Kidnapping Prevention Act was established in 1980 to create standards regarding the exercise of jurisdiction over custody matters. These standards are similar to those made by The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), but under PKPA the home state jurisdiction will override other jurisdictional claims. Also, PKPA, which is federal law, will override UCCJEA.

A judge will base an award for custody on which person or institution will best promote the interest and welfare of the child. This standard gives the judge the discretion to weigh factors that the judge feels have the most bearing on the interest of the child.

Visitation is a lesser version of custody awarded to a non-custodial parent. The same standard that applies to custody disputes applies to visitation rights. A trial judge will look to what best suits the interest of the child. Often, in North Carolina cases, non-custodial parents are awarded alternate weekends, overnight visitation, some major holidays, and other special days such as Mother’s Day, Father’s Day, and birthdays. Keep in mind that some judges in North Carolina are of the belief that younger children benefit from remaining in one setting most of the time, and for that reason, visitation with the non-custodial parent could be limited.

The Uniform Child Custody Jurisdiction and Enforcement Act was created to prevent parental kidnapping in an effort to obtain custody in different states in lieu of a custody decree ordered in another state. This Act standardizes jurisdiction and enforcement rules, and every state (including North Carolina) has adopted a version of this Act. There are four criteria created by the act to determine jurisdiction. A state has jurisdiction:

• If it is the state in which the child lived for the six months immediately prior to the custody proceeding, i.e. the “home state,” or if the state had been the home state and the child is now absent because he or she has been removed by the individual seeking custody; or
• If it is in the child’s best interest because the child and one or both parents have a “significant connection” with the state and evidence relevant to the child’s present or future care, training, and relationships is available within the state, and a court of another state does not have jurisdiction; or
• If the child is physically present in North Carolina and has been abandoned or an emergency situation exists; or
• If no other state would have jurisdiction under the UCCJEA, or if another state has declined jurisdiction and it is in the child’s best interest for North Carolina to assume jurisdiction.

In addition, a court must deny jurisdiction if there is a pending custody action in another state that has met these four requirements listed above. Jurisdiction can also be denied if a parent is attempting to violate or avoid a custody decree from another state. Lastly, a court with jurisdiction cannot modify a decree ordered by another state.

In addition to establishing jurisdiction, the Act also provides a notice requirement to custody actions. The Act requires that any parent or party to a custody action must receive reasonable notice and opportunity to be heard before the court can make a non-emergency award of custody. Motions for custody in an already pending action may be made on 10 days’ notice to other parties. Note that full notice does not have to be given for an ex parte temporary order.

If your custody issue goes to court, the focus will become you and your spouse as a means to determine  the custody agreement. Therefore, the court will examine your conduct in the past. Based on your history, the court will predict how you will behave in the future. The judge will render a custody decision based on the “best interests” of the child. There are many, many factors considered by judges in determining the best interests of a child, most of which are straightforward. The judge can consider anything that might have a negative impact on the development of the child mentally, physically, and morally.

In considering the child’s developmental needs, the judge will take into account: a child’s age; the mental and physical wellbeing (or lack of it) of each parent; each parent’s ability to take care of the child; the home environment that each parent could provide to the child; the role each parent currently has in taking care of the child; the child’s relationship to each parent; the time available to each parent to be with the child; the environment that the parent can create for the child; the presence of siblings in the family and the siblings’ relationship to each parent and to each other; prior bad acts of either parent (for instance, abuse and neglect); parental drug or alcohol problems; religious factors; the willingness of each parent to keep the other parent involved in the child’s life and to facilitate the other parent’s access to the child; and each parent’s adult relationships, including non-marital sexual relations. But remember that the weight the judge gives to any of these factors is completely within the judge’s discretion.

Any parent, relative, or other person, agency, organization, or institution claiming custody of a minor child may bring an action in court. Filing a complaint, counterclaim, or motion in the cause in an already pending matter are the usual methods for putting custody before the court.

Your dating life could cause your settlement agreement to unravel if your spouse feels threatened by the possibility of another “parent” figure in your child’s life. Many spouses often react to such a threat by insisting that a new girlfriend or boyfriend be completely isolated from the child. Also, custody plans and agreements that were once agreed on could soon fall apart because of a new dating partner. In addition, your spouse could try to use your dating life as a weapon to gain custody of your child.

This theory of a new dating partner as a means to gain custody of a child has been rejected in North Carolina appellate court based on certain facts; however, if your spouse could show that your dating has become a distraction in your life and has subsequently caused neglect or inattention to your child, your position in a custody dispute could be greatly weakened.

Often, terminology gets in the way of an otherwise friendly custody agreement. Phrases such as “sole custody” and “joint custody” are terms that parents fight to include, but in actuality, lack legal importance. These terms typically refer to a parent’s rights to make decisions regarding the child, with “sole custody” indicating that the parent with possession has most or all of the decision-making authority and with “joint custody” tending to indicate that each parent will have some decision-making input.

The the terms “joint” and “sole” can lack legal importance because they can only mean whatever the written custody document says they mean. You need to keep this in mind as you draft your agreement. You also need to keep this in mind when you start to find yourself in a fight over terminology. “Sole custody” and “joint custody” have no special meaning in North Carolina except the meaning you give them in an agreement or the meaning a judge gives these terms in a court order. In other words, it all depends on what else the document says, if anything.

While a grandparent does not have standing to seek visitation when children are living in an intact family without issues of divorce or separation, grandparents do have standing to seek custody or visitation with a minor child who is living in a home torn by separation or divorce. A North Carolina court will balance the concepts of “parental rights” and the “best interest of the child” to resolve visitation disputes. In balancing these doctrines, the court must look to several factors, including: the child’s interest in maintaining a connection with a “psychological parent” who may be more important in the child’s life than a biological parent, the rights (if any) of the grandparents, and the rights of the parents.

In determining whether a grandparent has standing to seek visitation in North Carolina, the courts rely on specific statutory provisions. The law defines a grandparent as the biological grandparent of the child, except when the child has been adopted. If a child has been adopted, then the child “joins the bloodline” of the adoptive family, and the adoptive grandparents have standing. Step-grandparents do not have standing when familial ties have been severed by death or divorce of the actual stepparent. In the case of adoption, if a stepparent or blood relative has adopted the child, and the biological grandparents have a substantial relationship with the child, then the biological grandparents retain standing. However, if the adoptive parents have no blood relation to the child, and the parental rights of the biological parents have been terminated by the adoption, the biological grandparents will lose their standing to seek visitation. These statutory provisions also state that a grandparent can obtain standing and seek custody or visitation where “[a]ny parent, relative, or other person, agency, organization or institution claiming the right to custody of a minor child” is unfit, has died, or has engaged in conduct inconsistent with the parent’s parental status.

Third party custody and visitation can be complicated to dispute; therefore, it is best to seek advice from your attorney concerning the matter. Also, you can take a look at the following North Carolina cases to gain insight on how the court has determined visitation in cases involving grandparents and other third parties: Troxel v. Granville, Hill v. Newman, Peterson v. Rogers.

Supervised visitation is an alternative frequently used to ensure that both parents enjoy some form of custody with their child. It is rare that a North Carolina court would deny a non-custodial parent from having any visitation. However, in times where a parent has demonstrated that he or she could harm the child or place the child in a harmful environment, the court will order supervised visitation. Supervised visitation can take place in the non-custodial parent’s home, a public park, mall, or even a protected setting such as a professional facility. A social worker, family member, or another third party can be designated to supervise the interaction. And while a judge may require that a non-custodial parent’s visitation be supervised, that same order can be modified if the parent takes corrective measures to show the court that the child will be safe in an unsupervised setting.

Child custody can be filed either independently or in conjunction with another family law cause of action, such as: absolute divorce, divorce from bed and board, annulment, or alimony without divorce. A child custody action attached to a cause of action for absolute divorce can come before the action, directly after, or take place during a pending divorce. An independent custody claim must, however, be brought after the parties have already separated or there must be a pending claim that would lead a judge to remove one parent from the parties’ residence. Parents have a long timeline for when custody can be determined that spans the length of a child’s years as a minor.

Custody agreements contracted between you and your spouse can be modified without the assistance of the court if both parents can come to an agreement amicably. In the event that parents cannot reach an agreement to modify an existing custody arrangement, the court will have jurisdiction to intervene. In such a case, where the parties have an out of court prior written agreement, the court would make its own initial determination of custody and visitation without either party having to show changed circumstances affecting the welfare of the child. The court will base its decision on the best interests of the child.

Child custody is one of the most emotionally charged issues in domestic law. Because of this, it can easily become one of the most expensive aspects of your separation or divorce. However, many couples are able to compromise on custody outside of court, preventing custody from being an issue in more than 90 percent of divorces. In these agreements, typically, one parent (still usually the mother) has been the primary caregiver throughout the child’s life, and the parties agree that this caregiver should continue to have the child most of the time.

In North Carolina, private agreements on custody and visitation do not have to be submitted to a judge. It is, however, important to remember that until a private agreement or court order on custody is issued, the general rule will still apply: each parent has co-equal rights to the physical possession of a child of the marriage.

Also, unless there is some written document establishing custodial and visitation rights, the custodial arrangements are subject to being changed at the whim of either parent. For as long as you don’t have a controlling written document, either you or your spouse could try to change the existing custodial arrangement at any time. Either parent could leave the state of North Carolina with the children, as long as they aren’t leaving for the sole purpose of evading going to court. The lack of a controlling document makes a child vulnerable to an unpredictable living arrangement, which could create feelings of disjointedness.

Lastly, one benefit of creating your own separation agreement is that you have the power to define the custody arrangement that is best for your child, but if a judge has to decide the custody arrangement, you lose your decision-making power.

In civil district court, it’s a trial judge who decides child custody matters. Because a judge is given broad discretion in determining custody, it is important to know a judge’s predispositions prior to trial. While some counties in North Carolina give the parties some flexibility in choosing the judge who will hear their trial, other counties do not allow such flexibility. Most judges will award primary custody to one parent and secondary authority (visitation) to the other parent. The judge also has the authority to divide custody equally between both parties, although that is unlikely.

• If it is the state in which the child lived for the six months immediately prior to the custody proceeding, i.e. the “home state,” or if the state had been the home state and the child is now absent because he or she has been removed by the individual seeking custody; or
• If it is in the child’s best interest because the child and one or both parents have a “significant connection” with the state and evidence relevant to the child’s present or future care, training, and relationships is available within the state, and a court of another state does not have jurisdiction; or
• If the child is physically present in North Carolina and has been abandoned or an emergency situation exists; or
• If no other state would have jurisdiction under the UCCJEA, or if another state has declined jurisdiction and it is in the child’s best interest for North Carolina to assume jurisdiction.

In addition, a court must deny jurisdiction if there is a pending custody action in another state that has met these four requirements listed above. Jurisdiction can also be denied if a parent is attempting to violate or avoid a custody decree from another state. Lastly, a court with jurisdiction cannot modify a decree ordered by another state.

In addition to establishing jurisdiction, the Act also provides a notice requirement to custody actions. The Act requires that any parent or party to a custody action must receive reasonable notice and opportunity to be heard before the court can make a non-emergency award of custody. Motions for custody in an already pending action may be made on 10 days’ notice to other parties. Note that full notice does not have to be given for an ex parte temporary order.

If the judge and your attorney determine that appearing in court may be traumatic for your child or that your child is too young to understand what may be asked of him or her during the proceeding, your child may not have to speak in court.

A stepparent may be responsible for paying child support for a child, or children, that do not come from the marriage to the parent. However, such responsibility depends on the facts of the case. There must be an agreement to pay support that is signed and notarized, and such contract will be enforceable. Absent adoption, a stepparent can assume an obligation for child support by taking the child into his/her home, acting in the role of a parent (loco parentis), and remain obligated to provide support so long as the relationship exists between stepparent and child. After a divorce, the stepparent is not required to continue support the child without a formalized agreement.

Third-party contributions may be used to support a deviation from the North Carolina Support Guidelines. Thus, the parent receiving the payment must show the actual expenses and the contribution being made by the stepparent. Nevertheless, a stepparent generally has no obligation to provide support for the children of her spouse’s prior marriage.

Generally, courts are permitted to overrule child support amounts in separation agreements. The court has discretionary power and laws that protect a minor child’s interest. Therefore, no agreement or contract will deny a court such authority to enforce or modify agreed-upon support provisions.

While a court is not permitted to directly change the provisions of child support via private contract, a court is permitted to enter a child support order and/or change an existing order based on a showing of changed circumstances.

Even though an agreement may provide for child support, a court is permitted to order a different amount of support to be paid. Also, if a pre-existing court order for child support exists, the court can alter the support amount based upon a showing of changed circumstances.

You cannot revoke visitation from a spouse who doesn’t pay child support. Child support and visitation are two legally independent components. For example, if one party has not received the appropriate child support payment, he or she may not decide on his or her own to bar the other parent from any visitation rights. There is no supporting legal foundation for such a move. In addition, such retaliation can have a negative impact on your child.

Child support obligations are not dischargeable in bankruptcy court.

Sharing joint custody of your child will not prevent you from having to pay child support. Even if both parents share custody equally, one parent will inevitably have to pay child support. Usually, the only way to avoid being required to pay child support is if both parents earn exactly the same income and spend the same amount of time with the children. In North Carolina, the child support guidelines calculate the obligation to pay based on time spent with each parent and the income of each parent. So even if the child spends equal time with each parent, the parent with the higher income will owe child support.

There are two approaches the court can take when deciding whether to modify child support and those depend on whether the original award resulted from a separation agreement or a court order.  If the original award came from a separation agreement, the party seeking to modify must show the amount of support necessary to meet the reasonable needs of the child at the time of the hearing. If the original order came from a court order, the party seeking to modify must show “changed circumstances,” which means a change that is “substantial and material.” The court will only look at changes since the entry of the most recent child support order. The court will look at the reasonable needs of the child, ability of each parent to pay, and other financial factors provided under the Child Support Guidelines.

Changing support of a court order is a higher standard than changing support of a separation agreement. For a separation agreement that details child support, the court will suppose the amount of support to be adequate. But, a court can disregard the amount of such support in a separation agreement if it so desires, because a previously agreed upon level of support is merely one of many factors to be considered at a hearing.

The appropriate worksheet will be determined by the type of custody arrangement in effect. The three types are sole, joint, and split custody. Sole custody calculations will be made with Worksheet A, joint custody under Worksheet B, and split custody under Worksheet C. To qualify as a sole custody arrangement, a child must stay overnight with the parent who does not have custody less than 123 nights per year. To qualify as a joint custody arrangement, the other parent must have the child at least 123 nights each year. To qualify as a split custody arrangement there must be more than one child, and a situation where one child lives with one parent full-time, and another child lives with the other parent full-time.

Note: In comparison to Worksheet A, a secondary parent’s obligation under Worksheet B generates a lower child support amount.

When filling out the respective worksheets, a number of components must be considered – the most common involving “gross income.’’  The North Carolina Child Support guidelines are broad in the definition of gross income and special calculations are to be made if self-employment or the operation of a business is involved. In looking at a parent’s income, there are two important features that involve imputed income and verification of income.

The Child Support guidelines occasionally allow for a parent to include his/her imputed income for a determination of child support when she is voluntarily unemployed or underemployed. Imputed income is those monies a party forgoes by performing those tasks him/herself that otherwise would have been performed by someone else. However, when a parent is caring for a child under 3 years old who she is required by law to care for, or a child who is physically or mentally incapacitated, the imputed income exception applies.

A party must verify his income. If a party fails to do so, the other party is entitled to relief.  In determining a child support award, the court will look at the income of both parents at the time the child support award is made. But, it is important to note that a parent’s potential income can be a factor that the court considers.

In North Carolina, a child under 18 years of age can receive child support. If a child is emancipated before 18, support ends at that earlier age. However, there are two situations in which a child over 18 can receive support. The first situation involves a child who has not graduated from high school, but is 18 years old. A child who is enrolled in high school will continue to receive support until the earlier of (1) reaching age 20; or (2) graduating from high school. The second situation involves a parent’s written agreement to support a child beyond age 18. So long as the agreement is valid and enforceable, the court can implement the support outlined in the agreement.

All states have adopted guidelines that set automatic rates of child support according to certain factors related to family income and the number of children. The current North Carolina Child Support Guidelines became effective on January 1, 2015, and provide detailed instructions for those families with incomes of less than 0,000 per year. Child support calculations are made by using pre-printed worksheets available in three forms. Here we will walk through each factor that the guidelines consider in determining the obligation.

NUMBER OF OVERNIGHTS

Your custody schedule has a direct impact on your child support obligation. Child support is calculated based on the number of overnights the child or children spend with each parent. Worksheet A recognizes a situation in which one parent has primary custody (more than 243 days per year). Worksheet B is applicable to parents who share custody jointly.

MONTHLY GROSS INCOME

The income of both parents is used pursuant to our guidelines. This figure should reflect the gross income before taxes. Income can include more than a salary. It factors in income from any source. A few of the types of income that are to be included are as follows: commissions, bonuses, dividends, severance pay as well as rental income, gifts and alimony received.

PRE-EXISTING CHILD SUPPORT

If either parent is currently paying child support for another child, that child support obligation will be included in your calculation.

MONTHLY WORK-RELATED CHILD CARE COSTS

Reasonable work-related childcare costs are part of the child support calculation. This refers to the cost of day care, nannies or babysitters.

HEALTH INSURANCE PREMIUMS

The out-of-pocket expense to insure each child is recognized by the guidelines. If an employer pays the premiums, then it should not be included on your child support worksheet. If the premium paid is for a family plan, and there is no way to determine how much of the premium goes towards the child’s insurance policy, the amount paid each month should be divided by the number of people on the plan to determine how much of the premium is for the child.

EXTRAORDINARY EXPENSES

Expenses for special or private elementary or secondary schools to meet a child’s particular educational needs (for instance, if the child is disabled) are considered by the guidelines. Extraordinary expenses can also refer to the cost of transporting the child between the parents’ homes.

FACTORS NOT CONSIDERED

Some fixed expenses that are used in other states for the calculation of child support, such as rent or mortgage, automobile payments, and utilities, are not expressly used in making the child support calculation in this state. Instead, such expenses are implicitly accounted for, as a general matter, in the North Carolina Guidelines amounts. Child support is a payment in an amount to meet the reasonable needs of the child for health, education and maintenance taking into consideration the incomes, childcare costs and health insurance costs, etc. of each party.

In such cases, the parties can either negotiate an amount of support that works for both parties, or the parties need to ask the court to decide whether a deviation above the maximum guideline amount is justified under the current situation

There are four adjustments that can have an impact on the amount of child support owed by a parent. These four factors include: (1) preexisting child support obligations and responsibility for other children; (2) payments for health insurance premiums; (3) work-related childcare costs; and (4) extraordinary expenses for a child’s medical bills, education, transportation and the like. The deduction from gross income for pre-existing obligations refers to the amount an individual is bound to pay pursuant to an existing court order or separation agreement.

The deduction for responsibility for other children refers to the money paid to support other minor children from either the current marriage or a previous one. The health insurance deduction takes into account the employee’s cost to insure the minor child. Work-related childcare costs are deducted at a rate of only 75%, thus taking into account the 25% federal tax credit for childcare. “Work-related” daycare costs include not only those costs related to the parent’s working but also to the parent’s looking for work.

Finally, extraordinary expenses encompass a child’s out of the ordinary medical, educational, and transportation expenses, whether permanent or temporary. If the expenses are short-term, this should be noted on both the worksheet and within any court order.

If you have custody of your child, the non-custodial parent will be ordered to pay child support. The paying spouse will be ordered to pay a percentage of his or her gross monthly income. North Carolina has specific guidelines that govern child support payments, but the court has the ability to deviate from these guidelines.

Generally, remarriage and the addition of a child with a new spouse will not affect the current obligation of a former spouse. In North Carolina, child support is based upon (1) the combined income of the parties; (2) the number of overnight stays a child has with each parent; (3) expenses for children with special needs; and (4) pre-existing support obligations.

A spouse who wants to lower his support obligation for a child from a previous marriage must seek a modification from the court by filing a motion to deviate. The spouse seeking a modification must show that the support obligation was “unfairly burdensome or unjust.”

Determining who needs to fill out a financial affidavit will depend upon the local rules of the court where the case is filed. Some counties require one party to complete the affidavit, while others require both parties to do so. The local rules will also detail the time for filing such an affidavit, as well as whether a party must provide the other with a copy.

It is suggested that a Plaintiff bring documents that verify the data provided in the financial affidavit. Such documents include checkbook registers and receipts. Some counties require recent pay stubs to be attached to the financial affidavit for verification purposes.

The financial affidavit itself requires the allocation of the needs and expenses between the parent with custody and the child. A fixed percentage can be used to divide up the expenses unless doing so would be considered unreasonable.

If the parent with custody remarries or begins living with other third parties, she is not permitted to total the expenses for everyone in the home, and then apportion the share of the child. Additionally, the present reasonable expenses of a parent only include actual or already planned expenditures. Expenses that have not been paid or planned for will be viewed questionably. Simply, a parent should not inflate expenses on the affidavit.

No, a child who receives support is not taxed, and the parent paying the support cannot claim the support as a tax deduction. While Section 71 of the Internal Revenue Code allows a deduction for a person who pays alimony to a spouse, child support payments are exempted. Under this same section, child support includes those payments specifically designated as such, as well as those payments which involve a condition relating to the child. For instance, if an alimony payment is to terminate upon a child reaching the age of 18, the alimony payments will be considered non-taxable, because they will be deemed child support.

In North Carolina, a judge is allowed to deviate from the guidelines when the number provided by them is less or more than the child actually needs. If a party wants to deviate from the Guidelines, he must present evidence supporting the need to deviate. Either parent can request a deviation from the amount set in the Guidelines, which may be upward or downward.

Instances that allow such deviation include a child’s standard of living, support that takes an untraditional form, and unusual visitation scheduling, among other factors that impact the amount owed.

In a family with a combined total income of over $180,000, the parent with custody usually requests an upward deviation from the guidelines.  Upward deviations from the guidelines are common in families of wealth or families with children who have unusual needs. The parent without custody, regardless of income, often is the parent requesting a downward deviation. In NC, a deviation is solely at the discretion of the judge. Downward deviations typically occur when the parent with custody of the child does not require the full amount set by the guidelines, or when the parent without custody is not able to pay the amount set by the Guidelines.

A party must request a deviation by written notice at least 10 days before a deviation hearing, unless it was requested initially when the case was filed. When a request is made the court must hold a hearing, and examine the evidence as it relates to the reasonable needs of the child and abilities of each parent to provide support. Then, and only then, can the court deviate from the Guidelines if it finds “by greater weight of the evidence” that in applying the Guidelines the reasonable needs of a child would not be met or would be exceeded.

After being awarded child support, there are additional steps to be taken by the parties. Often the parent who prevails will be asked by the court to draft the child support order. Such a task can be challenging and complex. North Carolina appellate courts have invalidated child support orders for reasons such as a lack of specificity. In particular, a court must show that it took “due regard” of various factors such like estates, conditions, accustomed standard of living and the like, in coming to its conclusions. Additionally, if the court departs from the Child Support Guidelines, the basis for such a departure must be established.

A change in circumstances can alter the amount of child support. This can happen in a few ways:

• The needs of the child increase (Support may increase)
• The income of the parent obligated to pay decreases without any fault of his own, regardless of the change of the child’s needs (Support may decrease)
• The income of both parents increases (Support may increase)

Changing the place of residence, either by a parent or child, can also affect support.

Child support can be determined either through a separation agreement or by the court. Since a separation agreement is a contract, the parents are able to agree to one assuming greater obligations than required by law. For example, parties may agree to provide for private schooling, post-secondary education, summer camp, life insurance, cost of living increases, or support of the child beyond age 18, among other situations. These are all items that a North Carolina court cannot order on its own, without such an agreement, with the exception of pre-college schooling and extracurricular expenses. Nevertheless, a separation agreement that contains additional items, like those listed, which is integrated into a “consent order” then gives the court the power to enforce the terms of the contract. But, many parents will not enter into separation agreement because the state of North Carolina cannot require the parent paying support to purchase life insurance or pay for college.

States across the U.S. have implemented “reciprocal enforcement” as it relates to child support. These laws allow support obligations to be enforced from state to state. In North Carolina, the Uniform Interstate Family Support Act (UIFSA) allows for such reciprocity across state lines. Currently, 26 states in the U.S. have adopted UIFSA. The application of UIFSA allows for the establishment, enforcement and modification of out-of-state support orders. Unlike URESA (Uniform Reciprocal Enforcement of Support Act), a parent who has custody of a child can establish a support order in her own home instead of just the state where the person who owes support resides.

These interstate (between states) actions are civil and not criminal in nature. One of the main issues with the prior Act was its allowance of multiple, inconsistent child support orders affecting only one family in different states. The Act also made it possible for the parent obligated to pay to be able to modify an order issued in another state. For example, a parent in Texas would be able to modify an NC order. UIFSA provides protection and prevention from these types of issues. UIFSA gives priority to one order, requiring recognition and enforcement of that primary order and prohibiting other states from modifying an existing primary order.

In child support cases, a court has exclusive authority under UIFSA over the support order so long as that state remains the residence of the parent obligated to pay, the parent with custody or the child, or until each party files written consent with the exclusive state authorizing another state’s court to assume exclusive authority over the case. In the instance where there may be more than one child support order, and the states each have exclusive authority via the party’s residence, the court presiding over the UIFSA proceeding must recognize the support order issued by the court in the child’s current home state.

In a situation where none of the courts issuing co-existing orders have exclusive authority over a case, UIFSA does not require recognition of any of the prior order except those with unpaid vested child support arrearages. In NC, a court must follow the UIFSA rules even in cases where the other state has not adopted the new Act. The paperwork needed for initiating a URESA/UIFSA action must substantially conform with the pleadings approved by Congress for IV-D cases. To make a valid ruling against a defendant who is not a resident of that state, a court must have personal jurisdiction over him.

There are a few grounds created by UIFSA that allow for a state to reach a non-resident. UIFSA child support matter may proceed when there is jurisdiction consistent with the due process clause of the Constitution, and one of the “long arm” grounds is fulfilled. In NC, a court can exercise personal jurisdiction over non-residents under UIFSA if any of the following apply:

• the non-resident was personally served with process in North Carolina;

• the non-resident submits to jurisdiction by consent, a general appearance, or filing a responsive pleading waiving the issue of lack of personal jurisdiction;
• the non-resident resided at one time in North Carolina with the child;
• the non-resident resided in NC at one time and provided prenatal expenses or support for the child;
• the child resides in NC as a result of acts or directives of the non-resident defendant;
• the non-resident engaged in an act of sexual intercourse in NC with the child’s other parent, and the child may have been conceived as a result of that act;
• the non-resident has asserted paternity in the paternity registry maintained in NC; or

• there is some other basis for the exercise of personal jurisdiction consistent with constitutional principles.

The following items should be included in a complaint, counterclaim or motion for child support: (1) the identity of the parties and where they reside; (2) the identity of the minor children, their date of birth, and where they reside; (3) the current custody situation; and (4) the information required by the UCCJA if custody is being sought. Optional claims to be included involve those that address the ability of the parent without custody to provide for the child, the need of the parent with custody for the home shared by the couple during the marriage, and the need of an attorney’s fees award.

In North Carolina, Chapter 50 of the North Carolina General Statutes (NCGS) sets out guidelines that regulate child support. These laws (referred to as statutes) outline certain aspects of child support, such as the persons permitted to bring a child support action; the persons to be held responsible for payment; and the timeframe in which a support case should be heard in court. In NC, a party may file a custody separate, or jointly with another action. If a party wishes to file a custody case jointly, it must be with either an annulment, absolute divorce, divorce from bed and board, or alimony without divorce case.

As has been stated, a child support case may be settled by the parties via a private agreement. The court in which the action can be heard must be either (1) the county where the parent/child resides; or (2) the county where the child is physically present.

Child support can be paid in numerous ways, such as in cash or even by transferring property, with the most common type of payment being cash. Cash support payments are typically made in monthly installments; however, they occasionally are made in weekly installments. The support payments are made by the parent who does not have custody of the child, and is received by the parent with custody of the child. In North Carolina, support payments can also be paid to people or entities acting on behalf of/for the benefit of the minor child. In such circumstances, either the party with custody can receive the support payments, or the clerk of court can receive the payments. If the clerk of court receives the payments, such payments will be sent to the intended party.

There are a number of ways to enforce a court order or agreement for child support. If the child support is set up in a contractual agreement, the basic remedy is a suit for breach of the contract. If child support was originally ordered by the court, the order is enforceable through the contempt powers of the court. A number of remedies are available for the enforcement of child support including: seizure of real estate and personal property, orders that bonds be posted, assignment of wages, garnishment, arrest, and interception of income tax refunds.

Outside of the above listed remedies, there are also criminal remedies that might be available to you to collect past due child support. One North Carolina statute states that if a parent willfully neglects or refuses to provide adequate support for his or her biological or adopted child, that parent is guilty of a misdemeanor and may be fined up to $500, imprisoned up to six months, or both. The parent may also be required to pay child support to the abandoned minor. A similar North Carolina statute also protects illegitimate children. Due to the United States Social Security Act, every state has adopted a protective program to enforce child support payments. In compliance with federal law, North Carolina has instituted its own child support enforcement program under our Department of Human Resources (“DHR”).

The Child Support Enforcement Agency is a government agency that works with custodial parents to obtain child support. Attorneys can also assist custodial parents in collecting child support. The Child Support Enforcement Agency does not require payment of its fees in advance and it is the most cost-efficient way to obtain past due child support by those who are unable to pay the fees required by private attorneys.

Although the local DHR unit may charge you certain costs as well as its legal fees, this remedy may provide needed assistance to you if you cannot afford to retain a private attorney to represent you in seeking or collecting child support payments. A possible disadvantage to using the public Child Support Enforcement Agency is that the bureaucracy has several cases, causing the cases to move slowly.

Stock options and Individual Retirement Accounts  (IRAs) can be considered income for calculating child support amounts.

A parent who has custody of a child may be able to make a claim for attorney’s fees if certain conditions are met: (1) the attorney’s fees are reasonable; (2) the case is only for child support; (3) the parent acts in good faith and is unable to pay the expenses of the lawsuit; and (4) the parent ordered to pay the support declines to comply with the order, which is satisfactory at the time the lawsuit is initiated.  To determine whether a parent has refused to provide support, the court takes a few considerations into account: (1) reasonable living expenses of the parent with custody; (2) past and present expenses of the child; (3) if applicable, the amount of support provided by the parent without custody.

For the court to make a determination about the “reasonableness” of attorney’s fees there must be evidence of the nature and scope of the legal services, the time and skill required, and the connection between the typical fee in such a case and the one requested in the present case.

No, a hearing is not necessary for a determination of child support to be made. Child support can be decided by: (1) written agreement by the parents; or (2) court order. Without a written agreement, a parent cannot rely on the facts and circumstances that predetermined child support payments to be made by the parent without custody (non-custodial parent). Additionally, the court can enforce a child support obligation if such predeterminations are not made.

Either party in a child support case is permitted to request a child support hearing if they cannot agree on a certain amount when: (1) the combined total income of the parties exceeds 0,000 per year, or (2) a party has information that suggests a deviation from the Child Support Guidelines is appropriate.

During these child support hearings, the evidence presented must address: (1) the income and expenses of the parties; (2) the reasonable needs of the minor child; (3) the ability of each parent to pay child support; and (4) if a ‘Motion for Deviation’ is filed, the basis for such a request. The court order, which is submitted by the judge, must include facts that deal with the reasonable needs of the minor, and the ability of each party to pay child support. If the court departs from the Child Support guidelines, it must explain and include facts that justify such a departure.