SEPARATION: When parties separate there are several different issues that must be decided. There is no law that requires the parties to complete a separation agreement, but a separation agreement can be a good tool to resolve issues incident to the dissolution of a marriage without resorting to litigation. In North Carolina, a separation agreement must be signed by both parties and notarized. This separation agreement becomes a contract between the parties enforceable by breach of contract remedies. A separation agreement can be incorporated into a divorce judgment to become an Order of the court. If the agreement is incorporated, then the Court can enforce the agreement through contempt powers. If the agreement is not incorporated into the divorce judgment, then the non-breaching party can bring a breach of contract action against the breaching party.
DIVORCE FROM BED AND BOARD: A divorce from bed and board is a judicial legal separation based on the fault of one party. This is NOT a divorce, and the parties will still be married until the courts grant an absolute divorce. In North Carolina (NC Gen. Stat. 50-7), the courts can grant a divorce from bed and board for the following reasons:
- Abandons his or her family
- Maliciously turns the other out of the marital home
- Cruel or barbarous treatment that endangers the life of the other
- Offers such indignities to the person of the other as to render his or her condition intolerable and life burdensome
- One party becomes an excessive user of alcohol or drugs so as to render the condition of the other spouse intolerable and the life of that spouse burdensome
- Commits adultery
ABSOLUTE DIVORCE: To file for an absolute divorce, which completely dissolves the bonds of matrimony, you must be separated for at least one year. Essentially, you must wait one year and one day to file a divorce complaint.
Child Custody and Visitation are terms that are often used interchangeably, however, visitation is generally used to describe a lesser form of custody.
TYPES OF CUSTODY – LEGAL CUSTODY AND PHYSICAL CUSTODY
- Legal custody deals with the decision making authority concerning the minor child. Legal Custody includes medical decisions, education decisions, day-to-day decision-making authority, extracurricular activities, etc…
- Physical custody governs where the minor child(ren) lives or is “physically present.”
Physical and Legal custody can be joint (shared) or sole (one person).
BEST INTEREST OF THE CHILD ANALYSIS
In North Carolina, child custody is determined by the court or a judge analyzing what will be in the best interest of the minor child. What is in the minor child’s best interest is determined on a case-by-case basis.
North Carolina uses the North Carolina Child Support Guidelines to determine the monthly amount of child support. The guidelines are established by the Conference of Chief District Court Judges. The guidelines apply to parties whose combined income is $360,000 annually/$30,000 monthly or less. If the parties combined income is greater than $360,000 annually/$30,000, then court will determine the amount of support based on the reasonable needs of the child(ren) for health, education, and maintenance taken into account the earnings and accustomed standard of living of the parties. To get more information about child support and the NC Child Support Guidelines click on the following link for the NC Child Support Services: https://www.ncchildsupport.com/ecoa/cseGuideLineDetails.html
Primary Custody – Child Support Worksheet A: This link should be used as a guideline to calculate the monthly child support obligation when party has primary custody of all of the minor child(ren).
Joint Custody or Shared Custody – Child Support Worksheet B: This link should be used as a guideline to calculate the monthly support obligation when: 1) the parents share custody of all of the minor child(ren) and each parent has more than 122 overnights OR 2) when one parent has primary physical custody of one or more of the children and the parents share custody of another child.
Split Custody – Child Support Worksheet C: This link should be used as a guideline to calculate the monthly support obligation when primary physical custody of two or more children is split between the parents.
Equitable or equal distribution of the marital and divisible property is fair. NC Gen. Stat. 50-20(c), provides: If the court determines that an equal division is not equitable, the court shall divide the marital property and divisible property equitably. The court shall consider all of the following factors under this subsection:
- The income, property, and liabilities of each party at the time the division of property is to become effective
- Any obligation for support arising out of a prior marriage
- The duration of the marriage and the age and physical and mental health of both parties
- The need of a parent with custody of a child or children of the marriage to occupy or own the marital residence and to use or own its household effects
- The expectation of pension, retirement, or other deferred compensation rights that are not marital property
- Any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of such marital property by the party not having title, including joint efforts or expenditures and contributions and services, or lack thereof, as a spouse, parent, wage earner or homemaker
- Any direct or indirect contribution made by one spouse to help educate or develop the career potential of the other spouse
- Any direct contribution to an increase in value of separate property which occurs during the course of the marriage
- The liquid or nonliquid character of all marital property and divisible property
- The difficulty of evaluating any component asset or any interest in a business, corporation or profession, and the economic desirability of retaining such asset or interest, intact and free from any claim or interference by the other party
- The tax consequences to each party, including those federal and State tax consequences that would have been incurred if the marital and divisible property had been sold or liquidated on the date of valuation. The trial court may, however, in its discretion, consider whether or when such tax consequences are reasonably likely to occur in determining the equitable value deemed appropriate for this factor
- Acts of either party to maintain, preserve, develop, or expand; or to waste, neglect, devalue or convert the marital property or divisible property, or both, during the period after separation of the parties and before the time of distribution
- In the event of the death of either party prior to the entry of any order for the distribution of property made pursuant to this subsection:
- Property passing to the surviving spouse by will or through intestacy due to the death of a spouse
- Property held as tenants by the entirety or as joint tenants with rights of survivorship passing to the surviving spouse due to the death of a spouse
- Property passing to the surviving spouse from life insurance, individual retirement accounts, pension or profit-sharing plans, any private or governmental retirement plan or annuity of which the decedent controlled the designation of beneficiary (excluding any benefits under the federal social security system), or any other retirement accounts or contracts, due to the death of a spouse
- The surviving spouse’s right to claim an “elective share” pursuant to G.S. 30-3.1 through G.S. 30-33, unless otherwise waived
- Any other factor which the court finds to be just and proper
TYPES OF PROPERTY – NC Gen. Stat. 50-20:
- Marital Property:
- 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, except property determined to be separate property or divisible property
- Marital property includes all vested and non-vested pension, retirement, and other deferred compensation rights, and vested and non-vested military pensions eligible under the federal Uniformed Services Former Spouses’ Protection Act
- It is presumed that all property acquired after the date of marriage and before the date of separation is marital property except property which is separate property
- It is presumed that all real property creating a tenancy by the entirety acquired after the date of marriage and before the date of separation is marital property. Either presumption may be rebutted by the greater weight of the evidence
- Separate Property:
- All real and personal property acquired by a spouse before marriage or acquired by a spouse by 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 shall be considered separate property only if such an intention is stated in the conveyance
- Property acquired in exchange for separate property shall remain 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 shall be considered separate property
- All professional licenses and business licenses which would terminate on transfer shall be considered separate property
- Divisible Property: All real and personal property as set forth below:
- All appreciation and diminution in value of marital property and divisible property of the parties occurring after the date of separation and prior to the date of distribution, except that appreciation or diminution in value which is the result of post-separation actions or activities of a spouse shall not be treated as divisible property
- All property, property rights, or any portion thereof received after the date of separation but before the date of distribution that was acquired as a result of the efforts of either spouse during the marriage and before the date of separation, including, but not limited to, commissions, bonuses, and contractual rights
- Passive income from marital property received after the date of separation, including, but not limited to, interest and dividends
- Passive increases and passive decreases in marital debt and financing charges and interest related to marital debt
In North Carolina there are 2 different terms used to describe spousal support; post-separation support (PSS) and Alimony. Post-separation support is support from the date of separation until the entry of an absolute divorce. Upon entry of an absolute divorce, the support is named alimony.
NC Gen. Stat. 50-16, provides that the court shall award alimony to the dependent spouse upon a finding that one spouse is a dependent spouse, that the other spouse is a supporting spouse, and that an award of alimony is equitable after considering all relevant factors.
NC Gen. Stat. 50-16, provides that in determining the amount and duration of any alimony aware, the Court will consider the following factors:
- The marital misconduct of either of the spouses;
- The relative earnings and earning capacities of the spouses;
- The ages and the physical, mental, and emotional conditions of the spouses;
- The amount and sources of earned and unearned income of both spouses, including, but not limited to, earnings, dividends, and benefits such as medical, retirement, insurance, social security, or others;
- The duration of the marriage;
- The contribution by one spouse to the education, training, or increased earning power of the other spouse;
- The extent to which the earning power, expenses, or financial obligations of a spouse will be affected by reason of serving as the custodian of a minor child;
- The standard of living of the spouses established during the marriage;
- The relative education of the spouses and the time necessary to acquire sufficient education or training to enable the spouse seeking alimony to find employment to meet his or her reasonable economic needs;
- The relative assets and liabilities of the spouses and the relative debt service requirements of the spouses, including legal obligations of support;
- The property brought to the marriage by either spouse;
- The contribution of a spouse as homemaker;
- The relative needs of the spouses;
- The federal, State, and local tax ramifications of the alimony award;
- Any other factor relating to the economic circumstances of the parties that the court finds to be just and proper; and
- The fact that income received by either party was previously considered by the court in determining the value of a marital or divisible asset in an equitable distribution of the parties’ marital or divisible property.