DIVORCE PLANNING AND RESPONSE in north carolina
The need for thoughtful consideration of the divorce and separation process is the most essential service our clients require. Divorce, separation, custody, parenting, and support concerns rarely arise in sudden and unexpected circumstances. While the initiation of a legal proceeding may seem precipitous, the parties usually sense the change in their relationship long before they seek counsel or initiate proceedings.
Despite the awareness of circumstances that may lead to divorce and separate support, many, many clients do not prepare or consider the need to plan and prepare for divorce. There are many guides to couples who consider divorce and need information about the process.
Dennis O'Dea has advised clients in divorce and domestic relations matters in many jurisdictions. He commenced his practice in Massachusetts where he secured an early and unusual joint custody order in a post divorce custody action when the concept of joint custody was quite new to the courts. Divorce, custody and support disputes often involve decisions and questions over court jurisdictions. Since divorce laws and practices do vary significantly across the country, the experience of the firm in considering jurisdictional challenges and court selection, if possible, is often an important resource.
a. things to remember about north carolina divorce law
A proper analysis of the impact of North Carolina law on a particular family and particular divorce requires a detailed analysis of a client's situation. This discussion of some of the aspects of North Carolina law that families and clients should understand is not a comprehensive discussion of North Carolina law and is not updated or subject to refinement as new decisions, laws, practices and other developments arise and should not be relied upon as legal advice or guidance in a particular client's case.
1. Grounds for Divorce
Though there are some behavior based grounds for divorce that may be asserted in a particular case, most divorce cases are brought by parties who satisfy the requirement that they have lived separate and apart for one year prior to commencing the action for absolute divorce. In addition to satisfying the legal grounds which entitle a party to seek a judgment of absolute divorce, the North Carolina court requires that a party reside in North Carolina as his or her domicile for six months before they may initiate a divorce case.
Living separate and apart in North Carolina means living in different homes. Couples who remain in the same home, but live separate lives or allocate separate space will not meet the test. The requirement that couples live separate and apart for a year creates a difficult problem for couples who must deal with the care of children, support and property issues.
2. Post Separation Support
Once a couple separates with the thought of a divorce, the need to deal with the living costs and income needs of the family becomes a matter that can generate contention and conflict. The best approach is for separating couples to negotiate a comprehensive separation agreement that establishes the parenting, support, property division, and termination of marital rights as a matter of private agreement. In the absence of an agreement, the court will hear actions for temporary support, custody, visitation and other issues that cannot be resolved by the parties. The litigation process can impose substantial costs if there is acrimony and unresolved conflict.
Like most states, North Carolina no longer follows the "tender years" bias in favor of mothers of small children. It does recognize the need for parents of young children to spend time away from the work force to care for their children and does not allow that factor to influence custody and support decisions. The courts seek to determine what is in the best interest of the children in resolving disputes over custody, care and visitation.
As a result of federal legislation, North Carolina has adopted support guidelines that establish a presumptive amount of support due to children. The intent of the guidelines is to provide some uniformity and predictability to the child support obligations imposed upon the parent who does not have physical custody. The parties may seek support orders that differ from the guidelines. For may couples, the economic burdens of child support can lead to a great deal of conflict and litigation. For people considering divorce, the need to reach agreement on child support obligations is critical in avoiding expensive, divisive and time-consuming litigation.
The division of assets between divorcing couples is more complicated than many people expect when they find themselves in conflict. When there is disagreement over rights to property, the courts must determine what property is marital property, personal property or divisible property under North Carolina law. It can be a complicated and dispute-ridden issue and requires substantial fact-gathering and historical information that may be difficult to obtain or reconstruct.
Once marital property is identified, the court follows an equitable distribution approach which favors and equal division, but allows the parties to claim a right to unequal distributions and divisions. The courts may take many factors in to account in deciding on the equitable distribution in a particular case.
5. Alienation of Affection and Criminal Conversation
North Carolina still recognizes the right of a spouse to sue someone who brings about the alienation of the affection of their spouse. Though the case requires a showing that there was a marriage relationship in existence in which there was affection between the parties, litigation against parties who engage in adulterous relationships with someone's spouse can generate real damages in a court judgment. In many divorce environments, there are other relationships that can lead to alienation of affection litigation. Separation agreements can reduce the risk of this litigation by agreement, but it is a common tactic to threaten such litigation.
Highlighting some of the considerations that have legal significance is not a comprehensive review of the legal complexity that follows the decision to divorce. If someone is considering divorce, they should consult a legal advisor and learn how their particular circumstances may affect the outcome of a divorce case. North Carolina has an extensive mediation and alternate dispute resolution process that also requires explanation.