Batch, Poore, & Williams, PC law firm in Raleigh is where clients come first. BPW's Raleigh divorce blog on frequently asked questions we encounter servicing clients in Raleigh, Wake County and surrounding areas.
Are you in need of financial support from your spouse? Are you the one on the hook for spousal support? Whatever the case may be, there are three things you need to know that have a major impact on your financial case.
1. How a Judge Decides Your Case:
In North Carolina, a judge has to find one spouse is the dependent spouse and the other is the supporting spouse. Meaning, one is dependent on the other for financial support. Gender doesn’t play a role in this decision at all. A man or a woman can be a dependent or supporting spouse.
The Judge will decide if the dependent spouse has enough income to cover his or her reasonable needs. The Judge will also look at whether the supporting spouse has the ability to pay. (i.e. his or her income is more than his or her reasonable expenses.)
There are two claims for spousal support: post-separation support and alimony. Post-separation support remains in effect until the alimony is granted or denied. A judge has discretion in deciding the amount, duration and manner of payment of alimony.
2. Required Documents:
Wake County requires mandatory “initial disclosures.” The parties have to exchange a lot of financial documents. Examples include recent paystubs, W-2s, etc.
Wake County also requires both parties exchange financial affidavits. The affidavit shows all your income and expenses and is like a budget. This is the single most important document in your spousal support case. The Judge will use it as a tool to help them make their decision. Since it is such a crucial document, it’s important to take your time with it. Don’t just estimate your numbers. Verify them. Print out your last 3-6 months of your bank statements and credit card statements. Then average your expenses for each expense category. It will take a lot of time but it will be worth it. Otherwise, you will pay your attorney to do it for you.
3. Duration of Your Case:
Post-Separation Support: The post-separation support (or temporary support) hearing is usually scheduled within 30 days of filing the complaint. The hearing usually takes 1 hour. That’s 30 mins for both sides to present their case. Post-separation support cases typically resolve within 60-90 days of hiring our firm. However, your case may take more or less time depending on the facts.
Alimony/Motion to Modify Alimony These cases are harder to estimate duration due to a lot of factors. But, on average, the case should resolve between 9 and 12 months from the date you hire our firm. The hearing is usually scheduled to take a full day.
Check out this extra tid-bit of information to learn more about your spousal support case.
Bonus Fact: Affairs Have an Effect on the Outcome of Spousal Support Cases
Did you know affairs have an effect on spousal support cases? Technically, whether “illicit sexual behavior” occured is the determining factor. Illicit sexual behavior includes vaginal or anal intercourse, cunnilingus, and fellatio. If a dependent spouse did it during the marriage, a Judge won’t award alimony. If the supporting spouse did it, a court has to award alimony. If both parties did, a court has discretion on whether to award alimony or not. Of course, you have to prove in court the other spouse engaged in it. And, if the innocent spouse forgave the other, the court will not consider it when deciding whether to award alimony or not. Check with your attorney to find out exactly what qualifies as forgiveness.
Also, North Carolina still recognizes claims for alienation of affection and criminal conversation. Meaning, a third party can still be held liable for breaking up a marriage.
Notify your attorney as soon as possible if you or your spouse has had an affair.
You’ve been through the court process and gotten a child custody order that delineates the custodial schedule with you and the other parent. Things went well for a while, but eventually, your child came back from a visit and indicated to you that they don’t want to go stay with the other parent anymore. As a parent, this can put you in a sticky situation, especially with older children whom you just can’t pick up and put in a car for a visit. You know that if visitation doesn’t occur there is a chance you could be held in contempt of court, so what do you do when your child doesn’t want to visit the other parent?
With teenage children, this is a frequent issue in custody cases. Sometimes the child’s reasons for not wanting to visit are as simple as, “I have more fun at your house than at dad’s house.” Other times, the issues can be more serious, including emotional abuse, substance abuse, or even domestic violence. If domestic violence towards the child is an issue, you can file for a domestic violence restraining order on behalf of the minor child. However, if the child’s reasons for not wanting to visit are not related to safety, what are your options?
A contempt ruling requires a court to find that the violating parent is in willful violation of a court order. When it is the child that refuses to visit, it can be difficult for a court to hold the custodial parent in contempt. However, if a court can find that the parent deliberately interfered with or in some way frustrated visitation by the non-custodial parent previously, this can support a finding of willfulness. Examples of deliberate interference are normally described as a failure to encourage the child to comply with the visitation order.
Encouragement can take many forms, including telling the child that they should visit the other parent, driving the child to the exchange location, offering for the non-custodial parent to visit the child at the custodial parents home or in an alternate location, and reinforcing to the child that they should maintain a relationship with the other parent. It is highly advised that you keep all conversations regarding the noncustodial parent positive. Here are examples of actions that could be construed as deliberate interference thus supporting a contempt finding:
Making statements like “you don’t have to visit if you don’t want to.”
Excessively questioning the minor child about what happened during their recent visit
Expressing anger with the child for discussing the other parent or communicating details about a recent visit with the other parent
Making promises to the child if they decline to visit with the other parent.
Influencing (“coaching”) a child to develop a negative opinion about the other parent or custodial time with the other parent.
Courts do not take kindly to one parent modifying a custody order on their own volition. In any event, if your child doesn’t want to visit with the other parent, take appropriate action to remedy the situation before you end up in front of a judge trying to prove that you did all you could to encourage visitation. It may be as simple as speaking with your co-parent if the child doesn’t want to visit and possibly seeking individual therapy. If safety is an issue, take the appropriate legal action of filing for a domestic violence protective order or calling Child Protective Services instead of not allowing visitation on your own.
No matter what happens, whether at trial or during settlement negotiations, someone will leave unhappy. This is especially true when it comes to alimony payments. As the payor (the person making alimony payments), you probably want to stop or decrease alimony payments as soon as possible. As the payee (the person receiving alimony payments), you probably want to increase alimony payments. There are certain circumstances when alimony may be modified or changed and when the obligation to pay ends altogether. Read on to find out how.
Modification of Alimony Payments
If an order for alimony has been entered, the order may be modified based on a substantial change in circumstances. The court will look at the financial circumstances of the parties at the time the order was entered versus the present financial circumstances of the parties. An alimony award can be decreased based on an increase in the dependent spouse’s income or a decrease in the supporting spouse’s income, among other reasons. To modify the order, the party will need to file a motion for modification and describe the substantial change in circumstances.
If alimony is addressed in a separation agreement, it’s covered by contract law. Look to the provisions contained in the contract. If the separation agreement allows for a modification of alimony, those terms need to be followed. If the separation agreement doesn’t discuss modifying alimony, you’ll need the other party’s consent to change the terms of the agreement and enter into a new contract.
Termination of Alimony Payments
The requirement to pay alimony under a court order will end upon the first of the following to occur:
Death of the payor;
Death of the payee;
Cohabitation of the payee with a romantic partner;
Marriage of the payee; or
Resumption of the marital relationship.
Basically, if either of you die or resume your marital relationship, the obligation ends. And If the payee begins to cohabitate or marries someone else, the obligation ends. Whether or not the payee is cohabitating with someone else is a question that depends on several factors. But if you’re living with one another and taking on certain duties and rights normally reserved for married couples, it’s likely you are cohabitating. You should speak with a family law attorney if you’re unsure and need assistance.
If none of the above events occur, the obligation ends on the termination date contained in the order.
Modifying or terminating alimony can be a tricky issue. Oftentimes, whether or not it’s appropriate to file a motion to modify alimony can turn on a single issue. Contact our office today to get answers to your specific situation.
Filing for divorce in North Carolina is a pretty straightforward process. Honestly, hiring an attorney is not strictly necessary. Even so, a lot of people prefer using an attorney to give them peace of mind the divorce was handled correctly. For someone unfamiliar with the court system, filing for and obtaining a divorce judgment can be confusing and overwhelming. For those of you who don’t mind taking the risk, these tips will help you avoid three common mistakes in a DIY divorce.
File Your Complaint on the Right Date: In North Carolina, filing on the wrong day can make or break your case. You must be legally separated for a year before you file. Literally, the very next day after a year, you can file for divorce. But filing any day before that will mess up your claim. So, if you and your spouse separated on January 1st, make sure to wait until January 2nd of the next year before filing your complaint for divorce.
Preserve Your Claims: In North Carolina, you lose your right to file claims for equitable distribution and/or spousal support once a divorce judgment is entered. This means that if you and your spouse have still not settled the distribution of your assets and/or spousal support in a formal written agreement or order, you could be making a very big mistake by filing for divorce right now. There is little to nothing that can be done to address these issues once a divorce judgment is entered. It is highly advised that you speak with an attorney if these issues have still not been settled.
Be Prepared for the Hearing: Even if your spouse isn’t contesting the divorce, most courts require the plaintiff to testify before granting a divorce. You’ll need to state very specific information on the record and, often times, judges will not assist by asking you questions. A good rule of thumb is to state the information included in your complaint, such as you and your spouse’s names, addresses, when you separated, etc. But don’t be shy about contacting the clerk of court’s office in the county you are obtaining the divorce. They usually have DIY divorce packets available which sometimes includes a fill-in-the-blank script for the hearing.
As a grandparent, you want the best for your son or daughter. You especially want the best for your grandchildren. When you see your son or daughter hurting, you want to protect them and comfort them. But sometimes, when you see they aren’t living right, you can’t do that. Instead, you have to take a stand and protect your grandchildren from their parents. Either because of physical harm or emotional hurt your grandchildren are experiencing at the hands of their parents.
That’s difficult to do and it takes an emotional toll. But if the parents are abusing or neglecting their children, it’s the right thing to do.
If you’ve realized something needs to be done, you’re probably wondering what you can do about it. A few options include contacting Child Protective Services or terminating parental rights and adopting the child. One of the options available that has the potential to create lasting, positive change is to take custody of your grandchild.
In North Carolina, grandparents can seek custody under certain circumstances. To be considered a grandparent, you must be the biological grandparent unless the child was adopted. Then, you must be the child’s grandparent through adoption. You have to show that both parents have acted “inconsistent with” their constitutionally protected parental rights. Basically, you have to prove abuse or neglect. Examples of acting inconsistent with parental rights include physically abusing the child, providing an unsafe living environment, emotional and mental instability, engaging in criminal activity while the child is present, abandoning the child, drug abuse, etc. This is not an exhaustive list. There are many situations that could qualify so speak to a family law attorney to be sure about the facts in your case.
If your situation does not fall under the above, you might be able to ask for visitation. While you cannot ask for visitation if the family is intact (meaning no separation or divorce), you can seek visitation during an active custody case. You will have to prove you have a substantial relationship with your grandchild. An example would be if you are use to seeing him or her every weekend for the past five years. Examples really do vary so you should speak with an attorney about your specific case.
It’s important to remember that it is within the Judge’s discretion to grant grandparent visitation or not grant it. The judge will look at factors to determine if visitation would be in the child’s best interest. For instance, a high degree of conflict between you and one or both of the parents, whether or not your interactions with the minor child are appropriate, etc. could all be considered by the Judge.
Whether or not you are seeking custody or visitation, you need a strong family law attorney to advocate on your behalf. Contact our office today for a consultation.