Family Law FAQs
Do not do this. You would be perpetrating a fraud on the court. If discovered, you might be subject to being held in contempt and it could affect the validity of a divorce judgment, which can then jeopardize the validity of a later marriage.
Yes. The rights to benefits under a credit card or any incentive program are assets that can be divided between the parties and they are marital assets that are often forgotten.
Children may or may not be witnesses in a custody or visitation lawsuit. A child does not get to decide where he or she will live until the child is 18 and has graduated from high school. There is no age under North Carolina Law where a child has a right to testify. Even very young children can testify provided they can demonstrate to the Court that they know the difference between lying and telling the truth.
If both parties agree, the Judges will typically take the child, with the attorneys, into chambers and speak with the child on an informal basis. If either party refuses to agree to this, then it will be necessary for the child to testify from the witness stand. Most judges do not like for children to be involved in domestic lawsuits. You should carefully consider whether or not you want to get the child involved. On the other hand, the child can sometimes be your strongest witness. This is a decision that needs to be made in consultation with your attorney. The child’s desires regarding custody or visitation may be considered by the Judge, but those desires will not be the determining factor in the Judge’s decision. It is the policy of Irvine Law Firm to avoid involving young children in the court proceedings unless absolutely necessary.
Yes. You can move anywhere that you choose to live. However, that does not give you the right to take your children with you. If a North Carolina court has already assumed jurisdiction over your children, then your move out of the State could result in a change of custody. The Court will have to consider where you are moving and why and determine what is in the children’s best interest. If it becomes clear to the Court that you are moving only to take the children away from their other parent, it is possible the Court could change custody and leave the children with the other parent. You should not make such life-changing decisions before discussing them with your lawyer.
No. As long as your spouse can show to the Court that the two of you have been separated for over a year, one of you has lived in North Carolina for at least 6 months and one of you intended that your separation would be permanent, the Court will enter a Decree of Absolute Divorce. You may be able to delay the entry of divorce by obtaining extensions of time to respond to the Complaint, but you cannot actually stop the divorce if the grounds for granting it exist.
Once husband and wife have separated, the party that remains in the marital home can change the locks and ask that the other spouse not return. Therefore, if you are planning to leave the marital residence, you should document the condition of the property you are leaving behind. Take photos or video-tape the condition of the home and the personal property before leaving. Make copies of any important documents you will need after you leave. See also our advice on Preparing to Separate.
In order to be legally separated in North Carolina, the parties must be living apart with the intention on the part of one of the spouses that the separation be permanent. There is no specific document required in order to be legally separated. However, what most people mean when they ask this question is “Can you help me negotiate and draft a legally binding separation agreement?”
A separation agreement is a contract between husband and wife who are or intend to be separated permanently. Separation agreements can address child custody, visitation, child support, alimony and equitable distribution of the property and debts of the spouses. If you and your spouse have agreed on the terms of your separation agreement, check out our Online Services. You can prepare your own Separation Agreement at a fraction of the cost of retaining an attorney.
There are quite a few ways to find out if your spouse may be cheating. Hiring a private investigator is one of the best ways to obtain proof. In addition to their report, you have someone who can testify in court to what they witnessed or found. In order to prove adultery, you must show that your spouse had the opportunity to commit adultery and was inclined to do so.
Evidence of opportunity may include photographs or witnesses who saw the parties together at a hotel or entering the paramour’s home.
Evidence of inclination may include emails between the parties that indicate an improper relationship or even simply multiple phone calls between the parties who otherwise have no other reason to communicate. You do not have to actually prove that the parties had sexual relations, only that they were inclined to do so and had an opportunity to do so.
The simple answer is because the law says so. The law sees a marriage as a partnership. You may have earned income working outside the home while your spouse took care of the duties of the household such as cooking, cleaning and caring for the children. Because equitable distribution and alimony are the law in North Carolina, you should be aware of the possible ramifications should the marriage end in divorce. You may also want to consider a pre-marital agreement.
No. Even if you are the spouse that chooses to leave the marital residence when you separate, you can still request that the home be distributed to you in equitable distribution. However, your spouse can insist that you not return until the court allows otherwise. Also, if you choose to leave, you should remember that things may be very different should the home be distributed to you by the court. Therefore, you should do your best to document or record the condition of the home before you leave.
If your parents deeded the property only in your name and it was a gift, then the land would be considered your separate property. If you deed the property to you and your spouse jointly, then you have made the land marital property. Assuming the deed has not been changed and the land is only in your name and you build a house, the house may be marital property although the land would remain your separate property. The Court would see this as a mixed marital and separate asset. The party owning the separate property land would likely receive the house and land in a property division and would need to pay the other party for their fair share of the net value of the house.
The payor’s death will terminate any obligation for child support or spousal support. In cases that we settle outside of court, we often negotiate a life insurance policy that would help the surviving spouse to replace the funds they had been receiving from the deceased spouse.
Joint custody can mean several different things. If the parties share joint legal custody, it may mean than they share the decision making authority for the decisions affecting the children. Sharing joint physical custody means that the children are dividing their time with the parents in something that approaches equal time with each parent.
The beginning of the timeline is when the parties separate. If necessary, they can file lawsuits to have the Court assist them with child custody, child support, spousal support or property division. Under certain circumstances, the Court can enter orders fairly quickly regarding custody, child support and spousal support. However, the Court cannot deal with property division until the parties have been separated for at least 6 months.
During the year that the parties are separated, they can be litigating or negotiating any issues necessary to resolve their differences. Once the year is up, either party may file a law suit to obtain an Absolute Divorce. The lawsuit cannot be filed earlier than the day after the anniversary of their separation. If the parties have not previously filed a lawsuit to deal with the other issues, those issues can be included in the divorce lawsuit. Once the lawsuit is filed, the parties can be divorced as quickly as the following day, but more likely approximately 60 days later.
Other issues between the parties, such as property division and support, do not have to be resolved prior to the granting of the divorce. The party moving for the divorce only has to show that they have been separated for one year and that they intended to end their marriage at the time of separation. They must also show that they have lived in North Carolina for at least 6 months. If those points have been proven, then the divorce will be granted, whether or not the other issues have been resolved.
There are many tax issues that may arise as part of your divorce case. Irvine Law Firm does not give tax advice and cannot assume any responsibility for the tax consequences of your case. It is your obligation to obtain independent tax advice so that you will understand the effect any settlement may have on your future income taxes. If your case is litigated, the judge can consider the tax consequences in his or her decision. However, you will need to have a CPA testify about those consequences. If your case is mediated, you should have a CPA on call with whom you can confer during the meditation before you agree to a settlement.
The tax issues that may arise during your case include but are not limited to the following:
- Child care deductions
- Dependency exemptions
- Taxability and deductibility of alimony
- Alimony recapture and constructive alimony
- Capital gains issues when property is sold
- Tax treatment of various retirement plans, including the best way to transfer retirement interests to minimize or avoid taxes; ability of parties to withdraw assets before distribution
- Any special tax issues that may arise depending on the nature of the property
- Marital home sales and qualifying to defer gain
- Valuation of business interests, including Sub S corporations
- Transfer restrictions that may apply to any asset, especially retirement plans and business interests
- Division of tax deductions and estimate tax payments
The best answer to that question is after you are divorced. However, that is not reality. Anyone who chooses to begin dating before their divorce should be aware of certain risks. If you are involved in a custody battle with your spouse, then the person you are dating and how they interact with your children may become an important component of the determination of custody. If you choose to have sexual relations with the person you are dating prior to your divorce, it could possibly be used as some evidence that adultery began before the date of separation, which could be relevant to an alimony claim.
Property belonging to the children can often be difficult to divide with the other marital property. However, until the children are adults, they do not have any separate property. It is best if the parents try to divide the children’s clothes and toys so that the children will have some at each home.
The simple answer is because the law says so. Under North Carolina law spouses must live apart for a year and a day before they can ask the Court to terminate their marriage. There are other states that allow shorter periods of time before a divorce can be granted.