Divorce and Family Law

North Carolina requires spouses to live separate and apart for one year before they can be granted a divorce. Living in separate rooms in the same house does not qualify as living separate and apart. You and your spouse will need to establish separate residences and then wait one year. But this does not mean that progress cannot be made during this year, as the legal issues between you and your spouse, including property division, alimony, child custody, and child support, can be resolved by agreement prior to divorce. In fact, you can work out an agreement addressing all these legal issues as soon as one of you moves out of the marital home.

In North Carolina, you are legally separated as soon as you and your spouse are living under two separate roofs.  You do not have to sign or file anything in order to be legally separated.  But if you or your spouse want to buy real property before you are divorced, it is a good idea to get a separation agreement in place first.

Yes.  After you and your spouse have separated, you can work out how you want to divide your property, and this agreement will be set out in a Separation Agreement that you both sign.  Your signatures on this agreement must be notarized in order for it to be valid in North Carolina.  This is a binding agreement, just like any other contract.  Alternatively, either of you can file an action (a lawsuit) for Equitable Distribution (“ED”).   If your ED action makes it to trial, the judge will classify your property and make a determination as to how to distribute it between you.  Like any lawsuit, this is an expensive process that will require you to assemble all your financial records from the date of marriage forward.  The more you can prepare in advance for your lawyer, the better your lawyer will be able to advocate on your behalf.

That depends on how the property is classified. In North Carolina, there are three categories of property—marital property, separate property, and divisible property.  Some assets may be mixed; for example, it is common for a retirement account to be both separate and marital property.

All property acquired after the date of marriage but before the date of separation is presumed to be marital property, no matter whose account it went into, or how the property was treated during the marriage. Marital property is presumed to be split equally between the spouses.

Separate property is anything that was acquired before the marriage or that was inherited or received as a gift during the marriage. Separate property belongs to the spouse who brought it into the marriage, or who inherited it.

The third category, divisible property, includes increases or decreases in the value of marital property after the date of separation but before the date the property is actually divided between the spouses.  It also includes property acquired after the date of separation but that was based on efforts during the marriage (for example, a purchase that was negotiated during the marriage but isn’t actually finalized until after the parties have separated).  Like marital property, divisible property is presumed to be split equally between the parties.

In some cases, marital and divisible property will be divided unequally.  This can be appropriate where one of the spouses has long term health problems or cares for a disabled child, to name just two examples.  It is up to the judge to decide whether an unequal distribution of the assets is appropriate in each case.

A house that was purchased during the marriage is presumed to be a marital asset.  As a marital asset, an equal division of its value is presumed to be equitable.   One option is to sell the house and split the proceeds.  However, if one person wants to keep the house, that person will need to buy the spouse’s share of the house. This can be done by trading assets (for example, A gives up her right to B’s retirement account in exchange for the marital home), or by refinancing and using the proceeds to buy the spouse’s share.  When one spouse keeps the marital home, the other spouse will need to be removed from the mortgage.  This can be done through refinancing.

Yes.  The business is another example of marital property.  Because the business was started during the marriage, it is marital property and an equal division of its value as of the date of separation will be presumed to be fair.

Maybe.  In general, money or property that is inherited remains the separate property of the person who inherits it, even if the inheritance happens during the marriage.  But if the inherited property was “given” to the marriage, it becomes marital property.  This can happen when the inheritance is used to purchase something titled in both spouses’ names, such as real property or a vehicle. If the inherited property is kept separate, or used to purchase something that is only titled in the recipient’s name, it is separate property, and is not split at divorce.

No. This is another example of separate property.  Property acquired by a spouse during marriage by gift is considered separate property.   Unlike marital property, separate property is not subject to equitable distribution.

Yes.  Your bonus is an example of divisible property.  Property received after the date of separation that was acquired as a result of your efforts during the marriage and before the date of separation is considered divisible property.   As with marital property—and unlike separate property—divisible property is subject to equitable distribution and an equal division of divisible property is presumed to be equitable.

Marital assets are valued as of the date of separation.  For high-value items like homes, real property, works of art, jewelry, or a business, it is best to get an appraisal of the property as of the date of separation.  Of course, you and your spouse can agree to use a different method of valuation – the tax value, for example.  As long as you both agree, an alternative method of valuation is fine.

Ordinary household items are valued at fair market value; that is, the value the item could fetch on the open market, if it were sold on Craigslist or E-bay, for example.  Smaller items are valued at yard-sale value.

The North Carolina Child Support Guidelines provide worksheets that produce child support calculations based on certain inputs.  Worksheet A is to be used when one parent has primary custody, meaning that parent has the child for 243 or more overnights per year.  For child support purposes, this is considered “primary custody”, but it does not change either parent’s legal custodial status – the number of overnights is important simply for deciding which worksheet to use.  In this case, you have your son for 52 overnights per year, so you will use Worksheet A.  Worksheet A will ask you for the number of children, monthly gross income, pre-existing child support payments, the number of other children, work related child care costs, health insurance premium costs, and extraordinary expenses.  Enter this information, and Worksheet A will give you the appropriate amount of child support.  If you have more than one child, enter the total number of overnights for each child.  For example, in this case, if you have two children who are with you one night per week, the number of overnights entered into the calculator would be 104.  (Click here to go to NC Child Support Worksheet A.)

If both parents have custody of the children for more than 123 nights per year, use Worksheet B to calculate child support.  (Click here to go to NC Child Support Worksheet B.)

Although the court will consider income and the duration of the marriage—among other factors—in determining the amount, duration, and manner of alimony, the actual amount awarded is within the judge’s discretion.  There is no alimony calculator.  Alimony is usually limited to the period necessary for the dependent spouse to rehabilitate their earning capacity and is not ordered on an indefinite basis.

In North Carolina, a Collaborative Divorce is not exactly the same thing as an amicable divorce. A Collaborative Law proceeding is a creation of the North Carolina legislature, codified in Article 4 of the Divorce and Alimony chapter of the North Carolina General Statutes. In a collaborative proceeding, both spouses and their lawyers sign an agreement stating that neither side will file suit. If an agreement is not reached through the collaborative process, and a civil lawsuit is started, neither attorney is allowed to represent either party in court. In addition, any information gathered and exchanged during the collaborative process is inadmissible in a lawsuit. These provisions are designed to encourage spouses to stick with the negotiations; shouting “See you in court!” means that both sides have to start all over with hiring new lawyers, exchanging all the financial information again, and hiring new appraisers, child therapists, or other experts. Obviously, this makes the process much more expensive, and the idea is that no one would be crazy enough to go through all that work and expense a second time.

You can have a cooperative, amicable, negotiated resolution of your issues without using Collaborative Law procedures. Our approach favors negotiated settlements with a family mediator, to save costs. But if you and your spouse are not able to reach an agreement despite everyone’s best efforts, we want to be able to represent you in court later on, and we want to be able to use the appraisals and reports you have already paid for. The goal is to get the best result, at the lowest cost, in the least amount of time.