Separation Agreements
When either of you have decided that "its over", you need to consider entering into what is commonly known as a Separation Agreement or Property Settlement and Separation Agreement. A Separation Agreement is a contract in writing between husband and wife that is signed and notarized. It may resolve all issues relating to child custody, child support, division of property and debt and alimony. In
There are many issues you must consider addressing in your agreement. They include: the legal and physical custody of your children and visitation, the payment of child support, healthcare and extraordinary expenses and activities, the amount and duration of alimony, the allocation of debts, assets and finally the division of the household property. You should spend as much effort as you can toward addressing all the issues you have in a Separation Agreement. Inevitably, you may not agree on some issues and those issues can be litigated in a court of law while the other issues are memorialized in the Separation Agreement. All Agreements are not the same. Each Agreement is crafted to the particular needs of each client. Each case presents its own unique set of circumstances and a "form" separation agreement that you can obtain from the internet, neighbor or a friend should be avoided.
A Separation Agreement is a binding contract and usually the product of much negotiation and disclosure. If you are presented with a Separation Agreement, please have it reviewed by a family law attorney prior to signing.
Uncontested or Absolute Divorce
If both parties cooperate, an uncontested or absolute divorce can usually be accomplished within fourteen (14) business days from our initial meeting and neither party would need to appear in court. Otherwise, it typically takes 45-60 days and a court appearance may be required by your attorney. If you are approaching your one year mark, here are some things to think about:
- You must be a resident of the County in which you will file for at least six (6) months.
- You must assert under oath that you have lived separate and apart for one year prior to filing for a divorce.
- You should know the current address of your spouse.
- If you want to revert back to your maiden name, I need to know your maiden name.
- If you have children, I need their names and their dates of birth.
- If you have children, I need their social security numbers.
- I need to know the date of marriage, the date of separation and where you were married.
- I need to know your full legal name and your spouse’s full legal name.
- If you have a Separation Agreement, I need to know whether you want that agreement incorporated into the Judgment for Absolute Divorce.
When an absolute divorce is granted, you should know that any claim, either yours or your spouses, for equitable distribution (a division of your assets and debts) and alimony are barred. If you are served with a Summons and Complaint for absolute divorce and fail to answer within thirty days, you may lose your right to an equitable distribution (a division of your assets and debts) and alimony.
The Clerk of Court filing fee is $165 and the service fee is $15 through the sheriff. The total cost, including the filing fee and service fee, is $700.
Equitable Distribution
Q. What is Equitable Distribution?
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Q. When should I make a demand for equitable distribution of marital assets and debts?
You should consult with an attorney and discuss your options but usually shortly after you separate. You may want to first attempt resolution through a Separation and Property Settlement Agreement. If you are unsuccessful with negotiating a Separation and Property Settlement Agreement within a reasonable time, you probably need to file a Complaint in a court of law. You can file at any time after separation but before an absolute divorce is granted. Either a husband or wife or both may file a claim for equitable distribution.
Q. If I am already divorced, can I make an equitable distribution claim?
A. It is worth repeating that a divorce decree bars your right to file a claim for equitable distribution unless you have a pending claim at the time of the divorce decree is entered.
Q. What is the Equitable Distribution process in
A. First, property is identified and classified, next the property is valued as of the date of separation, and finally the property is distributed.
Q. How is property identified and classified?
A. Property is identified by (1) knowing your assets and debts, (2) going through your records at home and (3) through the discovery and the voluntary production process. The property is classified as either marital, separate or marital but divisible property. All marital property is valued as of the date of separation (DOS), separate property is not valued and remains separate. Examples of separate property include gifts, inheritances and property owned prior to the marriage or acquired after the DOS.
Q. What is considered marital property?
A. "Marital property" means all real and personal property acquired by either spouse or both spouses during the course of the marriage and before the date of the separation of the parties, and presently owned.
Q. What is considered separate property?
A. "Separate property" means all real and personal property acquired by a spouse before marriage or acquired by a spouse by bequest, devise, descent, or gift during the course of the marriage. However, property acquired by gift from the other spouse during the course of the marriage is considered separate property only if the intention is stated in the conveyance. Property acquired in exchange for separate property remains separate property regardless of whether the title is in the name of the husband or wife or both and shall not be considered to be marital property unless a contrary intention is expressly stated in the conveyance. The increase in value of separate property and the income derived from separate property is considered separate property. All professional licenses and business licenses, which would terminate on transfer is be considered separate property.
Q. Is the division of property equal?
There is an equal division of marital property unless the court determines that an equal division is not equitable. If the court determines that an equal division is not equitable, the court will consider several factors to divide the marital property equitably.
Q. What factors are considered in an unequal distribution of property?
The Court considers twelve factors to determine distribution of property:
1) The financial state of the parties at the time of distribution,
2) Any prior marriage support obligations,
3) The duration of the marriage and the age and physical and mental health of both parties,
4) The need of a parent to occupy the marital residence and use the household effects for the care of the children of the marriage,
5) Any pension, retirement, or other deferred compensation rights that are not marital property,
6) Any contribution made to the acquisition of marital property by the party not having title,
7) The contribution made by one spouse to help educate or develop the career potential of the other spouse,
8) Any direct contribution to increase the value of separate property, which occurs during the course of the marriage,
9) The ability to liquidate the marital property,
10) The difficulty of evaluating an interest in a business and the economic desirability of retaining that interest,
11) The tax consequences to each party,
12) Any other factor that the court finds to be just and proper.
Q. Does equitable distribution include assets and debts?
A. In
Q. What is the valuation of property?
A. The court is required to fix the net value of the marital property as of the date of separation, which is the fair market value less the amount of any encumbrances. It may be necessary to hire an appraiser or other professionals to place a value on property.
Q. If I am receiving alimony and child support, does that affect the distribution of property?
A. No. Child support and alimony are separated from equitable distribution.
Q. Can pensions and retirements be divided?
Pensions and retirement funds are considered marital property (and often very valuable) and consequently subject to division.
Prenuptial Agreement
A prenuptial agreement is a contract between two people about to wed that spells out how assets and debts will be distributed in the event of divorce or death.
You should consider having an agreement if you fall into any of the following categories:
- You may be receiving an inheritance
- You have children and/or grandchildren from a previous marriage
- One of you is much wealthier than the other
- You have loved ones who need to be taken care of, such as elderly parents
- You have or are pursuing a degree or license in a potentially lucrative profession such as medicine
- You could see a big increase in income because your business is booming
- You have assets such as a home, stock or retirement funds you want to protect
Child Custody
Parents have equal rights to the custody of their children born of the marriage. In most cases, parents come together and work out a suitable agreement outside of the Court system. However, when parents cannot agree on custody arrangements, the Court will make a decision concerning custody based on what is in the best interest and welfare of the child. Below are a few common questions and answers relating to child custody.
Q. Why do we need a signed agreement for the custody of our children?
A. Without a written and signed agreement, for example, one parent can disrupt a child’s life by deciding suddenly to move the children to another school or city. Having an agreement in writing maintains consistency for the children, which is essential to their well-being. Custody and visitation arrangements can be written in a Separation Agreement along with decisions concerning spousal support and distribution of property.
Q. We cannot agree on custody arrangements, what is the next step?
A. One parent must file a Complaint, beginning a lawsuit, for child custody. The parties will have to attend mediation, and possibly parenting classes. Eventually, if the parties cannot reach an agreement, a trial court judge will hear evidence and determine custody.
Q. How does a judge decide who gets custody of the children?
A. A judge uses many factors to determine child custody. Some of the main considerations are the age of the children, the stability of a parent and their home environment, the time a parent has to spend with the children, efforts by either parent to undermine the other parent, facilitation of visitation and involvement of the other parent, child abuse and neglect, drug and alcohol problems, the wishes of a child of sufficient age (not a controlling factor), and any acts of domestic violence between the parties. Additionally, there is no preference to choose a mother over a father. A judge’s order for child custody and visitation will include findings of facts that support what the Judge feels is in the best interest of the children.
Q. What if I my spouse is being unpredictable during the pending claim for custody?
A. If the child’s life becomes unstable or they need protection from a parent’s actions, a judge may enter temporary orders for the custody and support of children.
Q. What is joint legal custody?
A. When parents have joint legal custody, they share in the decision making for the child on issues such as education and religion. It does not mean necessarily shared physical custody. In North Carolina, the vocabulary commonly used to describe custody arrangements does not have a set amount of physical time spent with a child associated with the term, for that reason, the arrangements written in the agreement are more important than what vocabulary we use.
Q. What is sole legal and physical custody?
A. A parent who has sole custody makes all major decisions and has primary physical custody of the child.
Q. If my spouse has primary physical custody of the children, what are my visitation rights?
A. The parent who is the non-custodial parent has the right to visit with their child. Similar to custody, many factors determine the visitation schedule. Children’s schedules, the distance the parents live apart, parent work schedules, etc., will determine visitation. Younger children typically spend most of their time with the custodial parent and typically spend, at a minimum, every other weekend, a weekday evening, alternate holidays, and two weeks each summer with the non-custodial parent. For a 50/50 custody arrangement to succeed, parents must be very cooperative and amicable with one another. If parents end up in a courtroom to determine custody, it is not common for a judge to order this type of arrangement.
Q. Once custody is agreed upon or ordered, can custody arrangements be changed?
A. Custody can always be modified. If there is a substantial change in circumstances and the parent asking for the change can show evidence that it is in the best interest of the children, a change in custody is possible.
Child Support
Q. Do I have to go to Court to receive child support payments?
A. Parents can write out the provisions of child support in a Separation Agreement. If a parent believes he or she will have trouble receiving regular child support payments, it may be necessary to ask the Court to order payments. A claim for child support can be filed at any time while the child is a minor and is always modifiable. The amount of child support is typically reviewed every three years or upon a significant change in circumstances such as loss of employment or a temporary or permanent disability.
Q. Will the noncustodial parent have to pay child support?
A. Both parents must pay child support. Payment of child support is generally based on the amount of time spent with the child and a percentage of the income of each parent. In effect, the parent who earns more money pays child support to the parent earning less.
Q. How is child support determined?
A. The court uses established guidelines to determine how much child support each parent pays. The guidelines generally are set to meet the reasonable needs of the child for health, education, and maintenance, taking into consideration the estates, earnings, conditions, accustomed standard of living of the child and the parties, the child care and homemaker contributions of each party, and other facts of a particular case.
Q. What if the child support payments are more than my ability to pay?
A. A judge may vary from the child support guidelines. The party ordered to pay child support will have to show by the greater weight of the evidence that the application of the guidelines would be unjust or inappropriate.
Q. What recourse do I have if my spouse refuses to pay Court ordered child support?
A. There are several remedies available a judge may use to enforce child support payments. A judge may secure payments by means of a bond, seizure of property, by requiring the execution of an assignment of wages, arrest, garnishment of wages, or place a specific lien against a particular real property.
Q. If my spouse files bankruptcy, can they discharge child support payments?
A. Child support payments are not subject to discharge in a bankruptcy court.
Q. Can I refuse visitation if I do not receive child support payments?
A. The remedies set out above are the only actions available to force child support payments and are separate from a parent’s right to visit a child. Children do not understand the complicated issues that adults create and it is in their best interest to have consistent contact with both parents.
Q. How long will child support payments last?
A. Child support payments last until a child reaches 18 unless the child is still in high school or fails to make satisfactory academic progress towards graduation, or reaches age 20, whichever comes first. In addition, payments will cease if the child becomes emancipated.
Q. Can I appeal Court ordered child support?
A. Yes, a party may appeal Court ordered child support, however, the party will continue child support payments throughout the appeal process unless the Appellate Court decides otherwise.
Alimony and Post Separation Support
Q. What is alimony?
A. Alimony is the payment for support and maintenance of a dependent spouse by a supporting spouse. Typically the dependent spouse, husband or wife, is in fact substantially dependent on the supporting spouse for their support.
Q. What is post separation support (PSS) and when does it terminate?
A. PSS is Court ordered spousal support paid by the supporting spouse to the dependent spouse until the date specified in the order of post-separation support, 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 or supporting spouse dies, or an order awarding or denying alimony, whichever comes first.
Q. What does it mean to be “substantially dependent”?
A. A spouse, either husband or wife, has monthly expenses that exceed the monthly income and the party has no other means to meet the expenses. The dependent spouse does not have to be impoverished. The Court considers the dependent spouse’s standard of living to which they have become accustomed during the last several years prior to the parties’ separation.
Q. How is alimony paid?
A. Payments for alimony can be made in periodic payments, in one lump sum, a transfer of title in real property, or an interest in other property.
Q. What factors are considered by a judge to determine alimony payments?
A. In making a determination, the court may consider the following factors:
1) The parties’ accustomed standard of living,
2) The party’s present employment and other reoccurring income and/or earnings,
3) The party’s ability to earn income,
4) The marital and separate debt service obligations,
5) The legal obligations to support other persons (including children), and
6) The expenses reasonably necessary to support each of the parties.
Q. How long do I have to pay alimony?
A. A party ordered to pay alimony is under an obligation to provide the support until terminated by either a date set by the court, remarriage of the dependent spouse, death of either party, or cohabitation of the dependent spouse. Alimony is intended to be rehabilitative to the dependent spouse. The hope is that the supporting spouse can provide the dependent spouse the opportunity to become self-supporting. The age, health, physical well-being, and other similar qualities are also factors the Court may consider.
