Practice Areas
Separation & Divorce
Separation and subsequent divorce can be a challenging and emotionally taxing experience for anyone involved. Whether you're considering separation, currently going through one, or have recently separated, we aim to provide you with guidance, support, and valuable insights to help you navigate this journey with clarity and strength.
Separation is a process that involves the legal and emotional dissolution of a relationship or marriage. It often entails significant changes in living arrangements, finances, and social dynamics. While every separation is unique, common legal matters that arise in separations are property division, child custody, and financial support.
In North Carolina a married couple must be physically separated for one year before filing for divorce. The first year of physical separation is crucial for couples to establish their new selves, financially and emotionally. This is also a tumultuous time for parents as they learn to coparent their children.
During your initial consultation, our attorneys will provide clarity on your rights and obligations for your unique family.
Spousal Support
Spousal support, also known as alimony or spousal maintenance, refers to the legal obligation for one spouse to provide financial support to the other spouse during or after a separation or divorce. This support is typically intended to help the dependent spouse maintain a standard of living similar to what they had during the marriage, especially if they cannot support themselves financially.
The amount and duration of spousal support can vary widely and are often determined by factors such as:
Length of the marriage: Longer marriages may result in longer spousal support obligations.
Income disparity: Spousal support may be higher if one spouse significantly out-earns the other.
Standard of living: The court may consider the couple's lifestyle during the marriage when determining spousal support.
Each spouse's earning capacity: The court may assess each spouse's ability to earn income, considering factors such as education, job skills, and employability.
Contributions to the marriage: Non-financial contributions, such as homemaking and childcare, may also be considered.
Spousal support can be paid in various forms, including periodic or lump-sum payments. Depending on the circumstances of the separation or divorce, spousal support arrangements can be negotiated between the spouses or ordered by the court.
The laws governing spousal support vary by situation, so it is essential to consult with a lawyer to understand your rights and obligations regarding spousal support.
Property Distribution
In North Carolina, marital property distribution is governed by the laws of equitable distribution. Equitable distribution means that the court will divide marital property in a fair and just manner, but not necessarily equal. Here are some key points about the distribution of marital property in North Carolina:
Marital Property vs. Separate Property: Marital property generally includes any property acquired by either spouse during the marriage, with some exceptions. Separate property typically includes property owned by either spouse before the marriage, gifts, and inheritances received by one spouse during the marriage, as well as certain other types of property as defined by law.
Factors Considered: When dividing marital property, the court considers various factors, including:
The duration of the marriage
The income and earning potential of each spouse
The age and health of each spouse
Contributions to the marriage by each spouse, including homemaking, child-rearing, and career-building
Debts and liabilities of each spouse
Any wasteful dissipation of assets by either spouse
Any other relevant factors deemed necessary by the court
Separate Maintenance of Property: North Carolina allows spouses to maintain separate ownership of certain property, such as inheritances or gifts received individually, as long as the property is not commingled with marital assets. However, the increase in value of separate property during the marriage may be considered marital property subject to equitable distribution.
Distribution Process: The court will first identify and classify the marital property and separate property. Then, it will determine how to distribute the marital property based on the principles of equitable distribution. This distribution may involve dividing assets between the spouses or awarding certain assets entirely to one spouse while compensating the other with other assets or monetary payments.
Pre-nuptial and Post-nuptial Agreements: Spouses in North Carolina can enter into pre-nuptial or post-nuptial agreements that specify how property will be divided in the event of divorce. These agreements can override the default rules of equitable distribution as long as they are valid and enforceable under North Carolina law.
It's important to note that the specifics of property distribution can vary depending on each case's circumstances and the court's discretion. Therefore, individuals facing divorce or seeking information about property distribution in North Carolina should consult a qualified attorney for personalized legal advice.
Child Support
In North Carolina, child support is determined based on guidelines established by state law. These guidelines take into account various factors, including the income of both parents, the number of children requiring support, and any special needs of the children.
Here are key points about child support in North Carolina:
1. Calculation of Child Support: Child support calculations in North Carolina are based on a formula outlined in the state's Child Support Guidelines. You can view the NC Child Support Guidelines here: CSS Guide Lines (ncdhhs.gov)
The guidelines take into account the gross incomes of both parents, childcare costs, healthcare expenses, and other relevant factors. The court may deviate from the guidelines if it finds that the calculated amount would be unjust or inappropriate in a particular case.
2. Income Considerations: In determining child support obligations, the court considers all sources of income, including wages, salaries, commissions, bonuses, dividends, and benefits such as Social Security or workers' compensation. Income from self-employment, rental properties, and other sources may also be considered.
3. Childcare Costs: Childcare costs, including daycare expenses, may be factored into the child support calculation. These costs are typically divided between the parents based on their respective incomes and the percentage of time each parent spends with the children.
4. Healthcare Expenses: Both parents may be required to contribute to the children's healthcare expenses, including medical insurance premiums, co-pays, and uninsured medical costs. These expenses are considered when calculating child support obligations.
5. Modification of Child Support: Child support orders may be modified if there is a significant change in circumstances, such as a change in income or expenses for either parent, or if the needs of the children change. Either parent can petition the court for a modification of child support.
6. Enforcement of Child Support Orders: North Carolina has various enforcement mechanisms in place to ensure that child support orders are enforced. These may include wage garnishment, interception of tax refunds, suspension of driver's licenses or professional licenses, and other legal remedies.
7. Duration of Child Support Obligations: Child support obligations typically continue until the child reaches the age of majority, which is 18 in North Carolina. However, child support may continue beyond that age if the child is still in high school or has special needs.
It's important for parents to understand their rights and obligations regarding child support in North Carolina. Consulting with a family law attorney can provide guidance on navigating child support matters and ensuring that the best interests of the children are met.
Custody
Custody laws in North Carolina focus on the best interests of the child when determining custody arrangements. Here are some key points regarding custody laws in North Carolina:
Types of Custody: North Carolina recognizes two types of custody:
Legal custody: This refers to the right of a parent to make important decisions regarding the child's upbringing, including decisions about education, healthcare, and religion.
Physical custody: This refers to where the child primarily resides.
Best Interests of the Child: North Carolina courts consider several factors to determine the best interests of the child when making custody decisions. Some of these factors include:
The child's relationship with each parent.
Each parent's ability to provide for the child's physical, emotional, and developmental needs.
The stability of each parent's home environment.
Any history of domestic violence or substance abuse by either parent.
The child's preferences, if they are mature enough to express them.
Joint Custody: North Carolina law does not presume joint custody. Instead, courts consider whether joint custody is in the best interests of the child based on the factors mentioned above.
Custody Mediation: In many cases, North Carolina courts may require parents to participate in custody mediation before litigating custody disputes. Mediation aims to help parents reach an agreement on custody and visitation arrangements outside of court.
Modification of Custody Orders: Custody orders in North Carolina can be modified if there has been a substantial change in circumstances that affects the welfare of the child since the last custody order was issued, and modification is in the child's best interests.
It is important to note that custody laws can be complex and can vary depending on the specific circumstances of each case. If you are dealing with a custody issue in North Carolina, it's advisable to seek guidance from a qualified family law attorney who can provide personalized advice based on your situation.
Separation Agreements
A separation agreement is a legally binding contract between two individuals who are either married or in a domestic partnership and have decided to live separately. This agreement outlines the terms and conditions regarding various aspects of their separation, including:
1. Division of assets and debts: It specifies how the couple's property, finances, and debts will be divided.
2. Child custody and support: If the couple has children, the agreement addresses issues such as custody, visitation rights, and child support payments.
3. Spousal support: It may outline whether one spouse will provide financial support to the other and under what conditions.
4. Living arrangements: The agreement may specify where each spouse will live during the separation period.
5. Insurance and benefits: It may address issues related to health insurance, life insurance, and other benefits.
Separation agreements provide a structured framework or roadmap for the separation process and help minimize conflicts and uncertainties between the parties involved. It is important to note that separation agreements may waive rights to property or support to which either party may be entitled so it is advisable for each party to consult with a lawyer before signing a separation agreement to ensure that their rights and interests are protected.
Alienation of Affection
In North Carolina, "alienation of affection" is a legal claim that can be pursued in certain cases involving marital infidelity. It allows a spouse to sue a third party who has interfered with the marital relationship, alleging that this interference led to the alienation of affection and ultimately to the breakdown of the marriage. Here are key points about alienation of affection in North Carolina:
Elements of Alienation of Affection: To successfully pursue an alienation of affection claim in North Carolina, the plaintiff (the spouse alleging alienation) must typically prove three elements:
The existence of a genuine loving relationship between the spouses.
The malicious conduct of the third party, such as an extramarital affair, which contributed to the alienation of affection.
Damage suffered by the plaintiff as a result of the alienation, which may include emotional distress and the dissolution of the marriage.
No-Fault Divorce State: North Carolina is a "no-fault" divorce state, meaning that spouses can seek a divorce without having to prove fault or blame for the breakdown of the marriage. However, alienation of affection claims provide an exception to this rule by allowing a spouse to seek damages against a third party for their role in the marital breakup.
Statute of Limitations: There is a statute of limitations for filing alienation of affection claims in North Carolina, typically within three years from the last act of the alleged misconduct.
Burden of Proof: The burden of proof in alienation of affection cases is on the plaintiff, who must demonstrate by a preponderance of the evidence (i.e., more likely than not) that the elements of the claim have been met.
Damages: If successful, the plaintiff may be awarded compensatory damages, which can include monetary compensation for emotional distress, loss of consortium (the loss of companionship and support), and other related harms.
Defenses: Defenses to alienation of affection claims may include lack of malicious intent on the part of the third party, consent or forgiveness by the plaintiff spouse, or lack of causation (i.e., the alleged interference did not actually contribute to the breakdown of the marriage).
Controversy and Criticism: Alienation of affection laws have been the subject of controversy and criticism, with some arguing that they are outdated and encourage unnecessary litigation. However, proponents of these laws contend that they provide a means of seeking accountability for wrongful conduct that damages marital relationships.
It is important for individuals considering pursuing or defending against an alienation of affection claim in North Carolina to seek legal advice from a qualified attorney familiar with family law in the state.
Guardianship
In North Carolina, adult guardianship is a legal process through which a court appoints a guardian to make decisions on behalf of an incapacitated adult (ward) who is unable to manage their own affairs. Here are key points about adult guardianship in North Carolina:
Definition of Incapacity: An adult is considered incapacitated if they are unable to manage their own affairs due to mental illness, intellectual disability, physical incapacity, or other factors. The court will determine the extent of the incapacity based on evidence provided during the guardianship proceedings.
Types of Guardianship: North Carolina recognizes two main types of guardianship for incapacitated adults:
Guardian of the Person: A guardian appointed to make decisions regarding the ward's personal care, health, and living arrangements.
Guardian of the Estate: A guardian appointed to manage the ward's financial affairs, assets, and property.
Initiating Guardianship Proceedings: Guardianship proceedings are typically initiated by filing a petition with the clerk of court in the county where the alleged incapacitated person resides. The petitioner may be a family member, friend, healthcare provider, or other interested party.
Appointment of Guardian: Once a petition is filed, the court will schedule a hearing to determine whether the adult is incapacitated and whether guardianship is necessary. If the court finds that guardianship is warranted, it will appoint a guardian, either an individual or a public or private agency, to act on behalf of the ward.
Duties and Responsibilities of Guardian: A guardian has a legal duty to act in the best interests of the ward and to make decisions that promote the ward's well-being and autonomy to the extent possible. The specific duties and powers of the guardian are outlined by the court and may vary depending on the circumstances of the case.
Court Oversight: The court maintains oversight of guardianship arrangements to ensure that the guardian fulfills their duties appropriately and that the rights of the ward are protected. The guardian may be required to file periodic reports with the court detailing the ward's status and any actions taken on their behalf.
Termination or Modification of Guardianship: Guardianship may be terminated or modified if the incapacitated adult regains capacity, if the guardian is found to be unfit or unable to fulfill their duties, or if circumstances change such that guardianship is no longer necessary.
Legal Representation: Incapacitated adults have the right to legal representation and are appointed a Guardian ad Litem to assist them through the guardianship proceedings. Additionally, guardians may benefit from seeking legal advice to understand their rights and obligations under North Carolina law.
It's important to note that guardianship is a serious legal matter with significant implications for the rights and autonomy of the incapacitated adult. Individuals involved in guardianship proceedings should seek guidance from a qualified attorney familiar with North Carolina's guardianship laws.
Adoption
Adoption in North Carolina involves a legal process through which individuals or couples become the legal parents of a child who is not biologically theirs. Here are key points about adoption in North Carolina:
Types of Adoption: North Carolina recognizes several types of adoption, including:
Domestic adoption: Adopting a child who is a resident of North Carolina, whether through an agency, private arrangement, or foster care.
International adoption: Adopting a child from another country and bringing them to North Carolina to live permanently.
Stepparent adoption: A stepparent legally adopts their spouse's child from a previous relationship.
Relative adoption: A relative, such as a grandparent, aunt, uncle, or sibling, adopts a child within their family.
Adoption Process: The adoption process in North Carolina involves several steps, including:
Pre-placement assessment: Prospective adoptive parents may undergo a home study and background checks to ensure they are suitable to adopt.
Placement: Once approved, a child is placed with the adoptive family, either through an agency, private arrangement, or foster care.
Legal proceedings: The adoptive parents must file a petition for adoption with the court. A hearing may be held to finalize the adoption, at which point the adoptive parents become the child's legal parents.
Consent Requirements: In most cases, consent must be obtained from various parties before an adoption can proceed. This may include the birth parents, the child (if old enough), and any legal guardians or agencies involved in the child's care.
Termination of Parental Rights: In many cases, parental rights must be terminated before an adoption can take place. This may occur voluntarily if the birth parents consent to the adoption, or involuntarily if the court determines that it is in the best interests of the child to terminate parental rights due to abuse, neglect, or abandonment.
Post-Adoption Services: After the adoption is finalized, adoptive families may access various support services, including counseling, support groups, and assistance with accessing resources for the adopted child's needs.
Finalization of Adoption: Once the adoption is finalized, the adoptive parents have all the legal rights and responsibilities of biological parents, and the adopted child has the same legal status as a biological child.
Legal Assistance: Adoptive parents are encouraged to seek legal assistance from an attorney who specializes in adoption law to navigate the complexities of the adoption process and ensure that their rights and the best interests of the child are protected.
Adoption laws and procedures can vary depending on the circumstances of the adoption and the jurisdiction. Prospective adoptive parents should consult with an attorney or adoption agency familiar with North Carolina's adoption laws for personalized guidance.
