Family law is a broad and complex field.  Issues in family law arise out of both marriage and divorce, and extend to the care and custody of children as well as to the division of property and property interests.  Family law spans the full spectrum of human experience, from infant adoption to elder care to estate planning.  It deals with fundamental legal and social values and touches virtually every aspect of life.

Many family  law issues—though certainly not all—arise one way or another from the dissolution of a marriage.  Divorce is a difficult personal passage as well as a complicated legal process.  Each family law case is different because every family situation is unique.  Tolstoy had it right more than a century ago.  Every unhappy family is unhappy in its own way.

The following materials are not intended to be a substitute for consultation with an attorney and should not be relied upon by anyone as legal advice.  Some important family law topics—adoption, annulment, and premarital agreements among others—are not covered.  In general, this information pertains solely to family law in North Carolina.  Statutes and court procedures vary from state to state, and the laws of one jurisdiction are not necessarily similar to those of another.  No actions should be taken regarding family law matters without the advice of qualified counsel who is familiar with all the relevant circumstances of a particular case.

NORTH CAROLINA FAMILY LAW OVERVIEW

Each family law case is different, but family law cases in North Carolina that arise out of the dissolution of a marriage typically involve one or more of the following six legal issues:

DIVORCE

The dissolution of a lawful marriage is called divorce.  In matrimonial cases, obtaining an “absolute divorce” refers to the judicial act of affirming the divorce itself as a matter of law. 

Like many other jurisdictions, North Carolina has “no fault” divorce laws.  To obtain a divorce, spouses must be physically separated from each other for a period of at least 365 days.  No grounds other than physical separation for the required period of time need to be satisfied in order to obtain a divorce.  A wife may resume her maiden name as part of an absolute divorce decree, but doing so is not required.

“Physically separated” usually means that spouses occupy separate residences and live apart for a period of at least 365 days.  Sleeping in separate rooms under the same roof does not generally satisfy the legal definition of physical separation. 

It is not necessary for spouses to “sign papers” or “file for legal separation” to be legally separated, although doing so can be evidence of separation.  “Physical separation” from one another in fact means that spouses are legally separated.

DIVORCE FROM BED AND BOARD

A court-ordered separation, called divorce from bed and board, may be obtained when spouses cannot agree to go their separate ways or when circumstances indicate that one spouse should be removed—forcibly if necessary—from the family home.   Grounds for obtaining a divorce from bed and board include abandonment, treatment rendering the complaining spouse’s condition intolerable, drugs or alcohol abuse, and adultery. 

SPOUSAL SUPPORT

The dissolution of a marriage sometimes raises questions about continuing financial support by one spouse for the other.  North Carolina law recognizes two types of spousal support.  One is temporary support, sometimes referred to as “post-separation support” or “PSS,” which is paid prior to the resolution of all support issues.  The other is “alimony,” which is usually part of a final resolution of support issues.  Alimony may either be permanent (payable for life) or limited to a specified period of time. 

Only a “dependent spouse” can receive temporary support or alimony.  Only a “supporting spouse” can be ordered to pay temporary support or alimony.  Whether one spouse is “dependent” and the other is “supporting” is a question of fact that depends on the circumstances of a particular case. 

Court-ordered support is generally based on need, but “fault” can be considered.  The amount of support one spouse pays to the other depends, in general, on the amount the dependent spouse actually needs and the amount the supporting spouse can actually pay.  Other factors such as the accustomed standard of living of the parties, their respective earning capacities, the amount of debt each has incurred individually, and marital misconduct before separation may also be taken into account.   Acts of marital misconduct (“fault”) include adultery, abandonment, cruel treatment, reckless spending or concealment of assets, and drug or alcohol abuse.    

There are no predetermined guidelines for temporary support or alimony in North Carolina.  The amount and duration of support payments depends on the facts of the particular case.  Both temporary support and alimony can terminate at a time specified by the court or set by the parties in a settlement agreement.  A subsequent agreement between the parties that changes the terms of court-ordered support must be approved by the court.  Spousal support typically ends when either spouse dies and usually, but not always, ends when a dependent spouse remarries.  Court-ordered spousal support also generally terminates if a dependent spouse engages in “cohabitation” by living with another person in a sexual relationship while being unmarried to that person. 

There is actually no such thing as “permanent” alimony, even where the dependent spouse never remarries and never engages in cohabitation.  Both the amount and the duration of support arrangements can be modified by court order or by agreement between the parties.  Either a dependent spouse or a supporting spouse can seek to change court-ordered spousal support arrangements based on a substantial change of circumstances.  Written support agreements between the parties generally can be changed only in accordance with the terms of the agreement and such changes typically require the consent of both parties.  In rare circumstances, one party to a support agreement may institute proceedings in court to break the terms of that agreement.           

CHILD CUSTODY

The dissolution of a marriage often involves decisions regarding the custody of minor children.  In North Carolina, a minor child is a person under the age of eighteen.  Custody is usually an issue between parents who have separated or divorced, but custody issues can also involve grandparents, relatives, and even unrelated adults.  Adoption is a special category of “custody” that also falls within the scope of family law.

 North Carolina law recognizes two custody categories:  legal custody and physical custody.  “Legal custody” imparts discretion to make final decisions about the major aspects of a child’s life in such areas as medical, educational, and religious matters.  “Physical custody” ensues from a decision as to where and with whom a child lives on a day-to-day basis.

Several different custodial arrangements are permitted under North Carolina law, including the following: 

(1) One parent may have both legal and physical custody, while the other has visitation privileges;

(2) Both parents may have joint legal custody and cooperate on major decisions regarding the child, but one has primary physical custody and the other has secondary physical custody;

(3) Both parents have joint legal custody and joint physical custody and cooperate on major decisions regarding the child, while the child lives with each parent during alternating periods of time.

A fourth custody arrangement, called “split custody,” can occur where there is more than one minor child of the marriage.  In split custody arrangements, each parent has primary physical custody of one or more of the children while both parents share joint legal custody of all of the children.

Visitation arrangements for the parent who does not have physical custody may vary according to the needs and schedules of both the parents and the child.  Visitation will be set by a court if the parents cannot agree.  There are no visitation guidelines or hard-and-fast rules regarding custody arrangements.  Court-ordered visitation often allows a non-custodial parent to have temporary physical custody every other weekend, for several hours at least one evening during the week, on alternating holidays, and for some extended period of time in the summer. 
           
In general, parents can agree on custodial arrangements they believe are in a child’s best interests.  But courts pay particular attention to the welfare of minor children and, in the event spouses cannot agree on reasonable arrangements, a judge will impose terms upon the parties regarding both legal and physical custody.  Either the custodial parent or the non-custodial parent may request a change in custody or visitation by filing a motion in court.  After a hearing, the presiding judge may order any change deemed suitable for the parties and in the best interests of the child.

Parents in most contested custody cases are required to take part in mediation before the matter goes to trial.  Custody issues are often settled at this stage by a written agreement between the parties.  Mediation is discussed below. 

Custody trials are usually traumatic for parents as well as children, and are almost always difficult, debilitating, and expensive.  Trial courts are charged with finding an arrangement that will best provide for the child's continued stability.  Judges consider many factors to determine legal and physical custody and visitation.  Factors bearing on custody issues can vary greatly from case to case.   

Negotiated custody arrangements can be modified by an agreement between the parties.  Court-ordered custody arrangements are difficult to change, but may be modified by a judge in limited circumstances so long as the court is persuaded that a change in custody is in the child’s best interest.   

CHILD SUPPORT

As a matter of law, parents in North Carolina have an obligation to provide support for their minor children.  Child support obligations continue after a marriage is dissolved, but expire when the recipient turns 18 unless he or she is still in high school.  In that event, the support obligation continues until the recipient graduates from high school or reaches the age of 20, whichever occurs first.  Child support obligations also terminate when either the supporting parent or the recipient dies, as well as when a recipient child is otherwise emancipated. 

Paying for a college education is not part of any legal support obligation in North Carolina and judges in this state cannot order one or both parents to pay college costs.  Negotiated custody and support agreements can obligate one spouse (or both spouses) to pay college costs, and such provisions will generally be enforced by the courts.

Certain guidelines apply in child support cases in North Carolina when the combined total gross annual income of both parents is less than $300,000 per year.  These “North Carolina Child Support Guidelines” take into account factors such as income, expenses, any extraordinary needs a child may have, and costs typically arising out of arrangements for the physical custody of the child.  In contested custody cases where the parents do not have combined incomes exceeding $300,000, child support in an amount at or near the “guideline amount” is likely to be imposed unless the court is persuaded that the amount of child support should be increased or decreased because of unique circumstances.   

The “North Carolina Child Support Guidelines” do not apply in cases where the combined annual incomes of both parents exceed $300,000.  Child support in such cases is typically based on actual past expenditures and reasonable future needs, on the respective ability of each parent to make child support payments, and on other pertinent factors.

Court-ordered child support obligations may be modified upon a showing of a substantial change in circumstances since child support was most recently determined.  In cases falling under the North Carolina Child Support Guidelines, child support can be reviewed every three years and there is a formula for determining whether a substantial change in circumstances has occurred that warrants a change in child support at those intervals. 

An increase in the income of a parent who is obligated to pay child support is not usually sufficient by itself to justify an increase in the amount of the support obligation.  An involuntary reduction in the income of the paying parent, however, may constitute a change in circumstances and result in a modification to reduce child support.  A voluntary reduction in the income of a paying parent is not usually sufficient to justify a decrease in child support unless the paying parent can also show a reduction in the child’s necessary expenses.

PROPERTY ISSUES

Divorce necessarily involves a division of property owned together by spouses.  In North Carolina, the process of dividing such property is called “Equitable Distribution.”  Property belonging to one spouse before the marriage is generally not subject to division and remains solely the property of that spouse. 

Equitable distribution requires the identification, classification, valuation, and division of all marital assets and liabilities—that is, of all property and property interests acquired by either or both spouses while they were together.  It is a detailed and complicated process.  The outcome of disputes about property divisions usually depends on the facts of each case. 

Property Identification

Equitable distribution cases begin with an effort to identify all property that is subject to classification, valuation, and division.  Once all relevant property interests have been identified, classification is required to determine whether a particular property interest is subject to division. 

Property Classifications

North Carolina law recognizes three property classifications for purposes of equitable distribution.  Only two of these classifications—“marital property” and “divisible property”—are subject to division.  A third property classification, called “separate property,” is not divided or allocated in equitable distribution proceedings.

"Marital property" is, in general, property acquired by one spouse during the marriage that was neither inherited nor received as a gift from a third person.  Gifts by one spouse to the other spouse during the marriage are, in most instances, considered marital property.  The manner in which a particular asset is titled does not necessarily determine whether that asset is marital property.  In addition to real estate and tangible personal property, “marital property” may include intangible assets such as retirement benefits, military pensions, and other deferred compensation rights. 

“Divisible property" refers to certain property rights and interests that accrue after the parties separate as a result of the efforts of one or both spouses before separation.  “Divisible property” might include interest earned on marital property, dividends derived from such property, commissions, bonuses, contractual rights, financing charges, and interest owed on marital debts.  It also might include an increase or decrease in the value of marital property resulting from the actions of one or both spouses before they separated.

"Separate property" includes property a spouse brought to the marriage, property either spouse inherited separately during the marriage, and property given to either spouse by third persons during the marriage.  A marital interest may be created in property that would otherwise be treated as separate property if either or both spouses use marital funds or expend efforts during the marriage to increase the value of such property.  Separate property also includes income generated from separate property, interests acquired in exchange for separate property, and property acquired with income earned after spouses separate. 

Property Valuation and Division

“Marital property” and “divisible property” are both subject to division under North Carolina’s equitable distribution law.  A spouse keeps property that is classified as his or her “separate property.” 

Unless the parties agree to divide their marital property, a judge will determine the division of marital property between them.  The division of marital property, by agreement or through court proceedings, is essentially a function of the value of all such property.  Valuation and division are thus separate but related steps in the equitable distribution process.  That process is intended to result in the allocation of an equitable share of the marital assets to each spouse.  The term “equitable share” does not necessarily mean equal share.

No precise or predictable formula is used in this state to decide how marital property should be  divided.  Courts generally begin with a presumption that an even division of the total net value of all marital assets between spouses is equitable.  But the facts of each case ultimately determine how the net value of marital property—marital assets and divisible assets—will be allocated.

Decisions with respect to the allocation of particular assets, such as a marital residence, may depend on facts other than property values.  In cases where the mix of assets does not permit the practical division of all assets equitably, courts have the power to order the sale of marital assets and to allocate the net proceeds of such sales equitably between the parties.  Parties may agree to make such sales, and to divide the net proceeds, without court intervention.     

Various factors in a particular case may indicate that an even or equal division of the value of all marital assets is not equitable.  Indeed, such factors may indicate that one spouse should receive a greater or lesser share of the martial estate than the other spouse.  There is no “laundry list” of such factors and no way to predict how any one factor might affect property division in a given case.  In general, any factor bearing on the equitable division of marital property between spouses may be taken into account.  The following factors, among others, often have some impact on the division of marital property:  The duration of the marriage; the respective age and health of each party; the expected receipt of retirement benefits that are not marital property; contributions made to the acquisition of marital property; contributions by one spouse to the education, career enhancement, or income of the other spouse; and the actions of either party afterseparation that might have contributed to the preservation or waste of marital property.

Marital Debts

Debts and other obligations of the spouses are “marital property” and thus must be divided equitably between them when they divorce.  There is no requirement under North Carolina law that debts must be allocated between spouses in the same percentage or on the same basis as other assets.  Courts must, however, consider the purpose for which a debt was incurred and the disposition of any asset encumbered by that debt in allocating debts between spouses.

Marital Misconduct

For purposes of equitable distribution, marital misconduct such as adultery is not generally a factor used in determining the division of property.  Financial misconduct by one spouse that causes marital assets to be destroyed or devalued is, however, a factor that will usually be taken into account.

Tax Considerations

The division of marital property between spouses necessarily involves transfers of property interests, but such transfers are not generally taxable events under federal or state laws.  In other words, such transfers will not usually result in either a tax on income or a loss deduction.  There may be tax consequences, however, if funds are transferred out of retirement accounts subject to favorable tax treatment or if marital assets are sold to third parties rather than allocated between spouses.  The advice of qualified professionals, including accountants, is often required to determine the proper tax treatment of such transfers. 

FAMILY LAW LITIGATION

All family law issues can be decided by agreement between the parties, in private proceedings such as arbitration, or in court.  Whether particular issues in a given case should be decided by a judge or through other means is a matter best determined with the advice of a competent matrimonial lawyer.  Litigation is expensive as well as physically and emotionally demanding.  The outcome of contested matters cannot be predicted with certainty.  Most family law cases nevertheless result in court action of some kind.  Not all differences between spouses can be resolved without court intervention.  Even those that might otherwise be privately settled sometimes expose a gulf between the parties that is simply too wide to bridge through negotiations.      

Litigation must be commenced if the parties in a family dispute cannot reach agreement, if there is no way to protect one spouse from the other, or if there is no way to protect children from one of the spouses.  Courts will act swiftly to guard the welfare of spouses and children and to protect their physical and financial interests.  In extreme circumstances, judges may grant emergency temporary relief even before scheduling a hearing at which the opposing party is present.  Litigation is obviously required if a spouse is physically abusive, refuses to provide necessary financial support, refuses to disclose financial information, conceals assets, or otherwise attempts to subvert conscientious efforts to resolve family disputes. 

The filing of a domestic relations lawsuit does not necessarily mean that a case will not later be settled out of court.  Parties are routinely encouraged by judges to resolve their differences.  In matrimonial cases, most court orders are entered largely because the parties cannot or will not settle the matter themselves. 

A number of separate trials and hearings may be required to resolve a domestic relations lawsuit.  Each of the issues discussed separately above—divorce,  alimony, child custody, child support, and equitable distribution—may be tried at separate times before different judges in different courts.  If interim relief such as temporary spousal support or child support or temporary custody must be sought, separate trials or contested hearings will usually be required to resolve each of these issues.  Compliance with time constraints built into the Rules of Civil Procedure, the necessity of conducting formal discovery, and crowded court dockets make scheduling these hearings difficult under the best of circumstances and usually mean that contested family law cases move ahead at a slow and sometimes frustrating pace.    

ALTERNATIVES FOR THE RESOLUTION OF FAMILY LAW ISSUES

Virtually all family law issues can be resolved by agreement if the parties are willing, or by private means such as mediation or arbitration that do not involve courtroom proceedings.  Each of these alternatives has advantages and disadvantages, which vary according to individual circumstances.  State law and local rules sometimes require parties to engage in mediation before going to court, even when the matter is set to be heard by a judge sometime later if an agreement cannot be reached. 

The matter of divorce must be handled in open court in all cases, however.  A judgment of absolute divorce is a public document whether or not all other issues relating to the dissolution of the marriage have been resolved by agreement or in private proceedings.  It is not necessary in this state for either or both parties to be present in court when a degree of absolute divorce is granted. 

Collaborative Law

Collaborative law is a relatively new method of dispute resolution and is authorized by statute in North Carolina.  As the name implies, the collaborative process is based on consensus and cooperation rather than on the resolution of issues through adversarial proceedings.  The parties in a collaborative case enter into an agreement to disclose all assets and debts, to negotiate in good faith, and to deal fairly with one another.  If the parties are committed to these objectives, collaborative law is a dignified and private way to resolve issues relating to custody, child support, spousal support, and property division.  The parties often use attorneys and other professionals (such as accountants and counselors) to assist in finding solutions to family law issues.   

Collaborative law is not for everyone.  There are significant adverse consequences to the parties if collaborative law agreements are violated and the process collapses.  Unless both the parties and their attorneys are committed to collaboration at the outset, the process is not likely to succeed. 

Mediation

Mediation is a non-confrontational procedure in which the parties themselves retain an independent facilitator, usually a lawyer who is not otherwise involved in the case, to help resolve issues in dispute. 

A mediator is a neutral participant and does not have the power to make decisions or impose orders.  The mediator’s objective is to move the parties toward a consensus.  Mediators do not represent either side and do not give legal advice, tax advice, or valuation advice.  They may give opinions to the parties and their lawyers if asked to do so. 

Most mediations involve private negotiations conducted while the parties are present in one general location but situated apart from one another, usually in separate conference rooms.  Mediations do not always result in agreements or resolve disputes, but when an agreement is reached during mediation settlement documents are usually prepared and executed immediately.  Mediation is thus a method of achieving what amounts to a negotiated settlement and parties are legally bound after mediation by the terms of any agreement they reach.

Mediation is mandatory under North Carolina law in child custody cases and, under local rules in some counties, in equitable distribution proceedings as well.

Arbitration

Arbitration is an adversarial method of dispute resolution that is, nevertheless, an alternative to court action.  Under North Carolina law, arbitration may be conducted either according to statutory guidelines or pursuant to an agreement between the parties.  Arbitration decisions are generally binding on the parties, although it is possible to engage in non-binding arbitration.

In arbitration proceedings, the parties select and pay an independent third-party (usually an experienced family lawyer) to decide issues based on evidence offered during a confidential hearing.  A panel of arbitrators may be retained in rare instances to hear and decide the case.  Arbitration hearings can be scheduled at the convenience of the participants and conducted in private facilities rather than in courtrooms open to the public.  Arbitration proceedings are generally less ceremonial than courthouse trials, although both sides present sworn testimony, offer documentary and illustrative evidence, and make legal arguments.  Conventional rules of evidence may be dispensed with at arbitration hearings, depending on understandings adopted by the parties. 

CONCLUSION

The preceding discussion does not cover all aspects of family law and should not be relied upon as legal advice.  Consultation in person with a qualified family law practitioner is essential in order to evaluate the particular facts and unique circumstances of each case.  Attorneys at Davis & Harwell are available for consultations regarding all family law issues and are experienced in handling family law matters through negotiations, court hearings, trials, and alternative methods of dispute resolution. 

We do not respond to unsolicited e-mail or telephone calls except to schedule office consultations.  Please refer to other areas of this website, including the Disclaimer, for more information.  Please call 336-722-1534 or contact us by e-mail to schedule a consultation.