1. Is what I tell my attorney confidential?
Yes. We must have all the facts in order to best represent your interests; therefore, Lawyer-client communications are completely confidential. Lawyers are unable to reveal clients’ oral or written statements to anyone without their clients’ consent. A good attorney should be a trusted counselor in the eyes of their client.
2. How long will the divorce process take?
There are many steps to this process and the length of each step is dependent upon a variety of factors. In North Carolina, in order to file for an Absolute Divorce you must wait until you and your spouse have been separated for one year before filing. Once the complaint and summons are served the opposing party has the opportunity to answer the complaint (the time allotted for this is usually 30 to 60 days).
The speed of the process is also dependent on how the claim is resolved.
Claims are usually resolved by one or more the following procedures:
- Agreement – Agreements can be made directly between the parties, negotiations between the lawyers, and negotiations that occur during mediation with a neutral third party. Agreements can be made either prior to filing a lawsuit or after it has been filed (but before the case goes to trial.)
- Litigation – A process that involves filing pleadings and additional documents with the court, engaging in official discovery proceedings and ultimately leading to a trial before a judge. Resolution by litigation can take up to a year or longer after filing a lawsuit.
- Arbitration – Arbitration is a procedure, similar to litigation, due to the fact that the parties submit their dispute to a neutral third party for a decision. However, the process is usually faster and less formal than litigation; and the parties can select the person who is to serve as the arbitrator (an attorney, a retired judge, or other third party.) If the parties agree, the arbitration decision is considered final and is a substitute for a decision made by a judge. If one or both of the parties does not accept the decision then the dispute can continue to litigation.
- Mediation – Mediation is a process in which the parties meet with an unbiased third party who tries to encourage a negotiated settlement. Mediations can occur before any lawsuit is filed, or it can occur during the litigation process. Lawyers participate with their clients in the mediation of financial claims but not in disputes concerning child custody.
The couple’s ability to agree on how to determine child custody and equitably split possessions in an efficient manner has a large influence on how long the divorce process takes. The length of time can also vary depending on:
- The complexity of the case
- The need for appraisals and evaluations
- The calendar of the judge to whom the case is assigned
There are certainly factors beyond the control of the parties and their lawyers but your lawyer will work with you to ensure that your claim gets handled in a diligent manner.
3. Who will get custody of my children?
In North Carolina, there is no preference for either parent in a custody dispute. The court makes custody decisions on the basis of what is in the best interest of the child(ren). Courts determine the interest of a child by examining all of the relevant factors of the child’s domestic life. Relevant factors may include:
- The role of each parent in caring for the child(ren).
- This entails looking back at to the parent’s physical care of the child. (For example: changing diapers, preparing meals, and helping with homework, etc.)
- The mental and physical condition of each parent
- This includes any physical or psychological issues that would interfere with his/her ability to function as a responsible parent.
- Whether a parent has abused or neglected the child(ren) or the other parent.
- Especially if this relates to a history of alcohol or drug abuse
- What does the child have to say about the situation?
- A judge will often consider the child’s feeling when making a custody determination.
- The child’s individual relationship with both of his/her parents
- Each parent’s ability to provide for the child(ren).
- Which parent is most apt to support a relationship between the child(ren) and the other parent?
- Each parent’s relations with other adults (including whether either parent has an intimate relationship with another adult.)
- The time each parent has for the child(ren), and the environment that each parent can create for the child(ren).
Custody includes both legal custody and physical custody components. Legal custody is decision-making power concerning important choices affecting a child’s well being and may be entrusted in one parent or in both parents equally for specific types of decisions.
“Visitation” refers to the time the child spends with a non-custodial parent. One of the most frequent schedules consists of alternating weekends, some extra time during the evening of a weekday, a percentage of major holidays, and numerous weeks during the summer. The details of your particular case may make it practical to implement a more structured or flexible schedule.
No matter how custody is awarded, an agreement that allows the child/children a balanced relationship with both parents is very attainable.
4. How do we figure how much child support should be paid?
The guidelines used to calculate child support orders are based on the parent’s ability to pay and the needs of the children. The aspects that influence the amount of child support to be paid are:
- The gross monthly income of each parent.
- The monthly expense of work-related childcare.
- The monthly rate of health insurance benefits for the child(ren).
The court may consider extraneous expenses, which are defined in the guidelines as including:
- Expenditures relating to special or private schooling to meet the particular educational needs of a child.
- Transportation expenses for the child(ren) to travel between the parents’ homes.
Each of these factors is taken into account to calculate a fair amount of money to cover all of the needs of the child(ren).
Child support is payable until the child is 18 years old. If the child has not graduated from high school when he/she reaches 18, the commitment continues until the child graduates or stops attending high school on a regular basis (whichever occurs first). The court cannot command a parent to fund a child’s college education. These costs may be addressed when parent is negotiating agreement for child support. Regarding taxes, the custodial parent is entitled to the dependency exemption of the child (unless the custodial parent waives such right). In North Carolina, our state courts have the discretion to require a custodial parent to give up the dependency exemption and to award it to the other parent.
5. How will our property be divided?
Over the course of a marriage most couples jointly accumulate a large amount of property as they build their lives together. The easiest way to allocate these shared possessions is to come together and reach an agreement. Your arrangement will then be acknowledged with a Separation Agreement. However, if both parties are unable to agree court will be required. In North Carolina the process of dividing the property and debts of a marriage (when spouses are unable to divide property on their own) is a three-step process called Equitable Distribution.
- Step 1: Identification. The judge will identify all assets and debts as of your date of separation (the date you stopped living together under one roof and did not subsequently cohabit or resume the marital relationship) and determine what property has been acquired from the date of separation through the date of trial.
- Step 2: Classification. The court must categorize all assets and debts in terms of “marital, divisible and separate.” These are legal terms, which will be explained to you in greater detail by your attorney. The judge can only distribute marital property, divisible property, marital debts, and divisible debts. The court has no power to distribute separate property and separate debts.
- Step 3: Valuation. Each piece of marital property is assigned fair market value. Fair market value is the price that a willing buyer would pay to a willing seller under circumstances where they are acting voluntarily.
- Step 4: Distribution. The court equally distributes the property. There is an assumption that an equitable distribution is the split of assets and debts in two shares of nearly equal net value. This does not mean that each asset is divided in half; it means only that the total of the assets distributed to one party is approximately equal to the total value of the assets distributed to the other party. There is a possibility of the court to distribute the property in an unequal fashion (giving one party over half of the total net value of the assets.) There are thirteen elements expressed by statute that the court should contemplate in deciding whether the property division will be equal or unequal. You and your lawyer will examine which, if any, of those dynamics apply to your situation. Marital misconduct by spouse is not usually considered in the resolution of property rights. The exception is if the misconduct causes the marital property to decrease in value.
6. What can I do to protect my assets before I make this move?
Often times the stress of divorce drives people to make spiteful, selfish decisions. To protect your assets from potential harm an important first step is to figure out what belongs entirely to you and what your spouse owns half of (your paycheck, your car, your retirement account, etc.)
Some additional steps to take include:
- Opening a Bank Account: This lessens your spouse’s ability to completely remove all funds from your account without your knowledge.
- Establishing Separation: One way to establish separation is to move out. Income received after this date will not be accessible by your spouse.
- Establishing Credit: Establish your own credit by getting a credit card in your name only. Do not authorize your spouse as a user or joint account holder.
- Displaying Good Behavior: Stay faithful to your relationship until its end, act responsibly, and don’t slander your spouse. All of these actions can have a negative effect on the outcome of the divorce.
Personal belongings hold a lot of value in not only monetary but, often times, sentimental worth. Each of these steps will help protect your assets from being drained without your knowledge or permission.
7. Am I going to receive postseperation support (PSS) or alimony?
Spousal support (alimony) consists of payments one spouse makes to support the other.
The difference between PSS and alimony is that PSS is a temporary form of support that terminates after the expiration of a certain period of time whereas alimony is considered a “permanent” form of support. The occurrence of certain specified events, such as remarriage and death are events that would alleviate the supporting spouse from his/her alimony obligation.
In some cases, the issue of whether postseparation support is to be paid (and if so, then how much) is resolved through negotiations between parties and their lawyers. In cases where an agreement cannot be reached, the claimed for PSS is submitted to the court for resolution. Not all spouses going through a separation and divorce are entitled to receive PSS. The following must be established in order for a spouse to receive PSS:
- The spouse seeking support must be dependent
- The spouse from whom support is sought must be a supporting spouse
- The resources of the dependent spouse are not sufficient to meet his/her needs
- The supporting spouse has the resources and capability to provide support to the dependent spouse
When deciding if alimony should be awarded to a spouse the court looks at a measure of factors:
- The current earnings and earning capacity of each spouse
- The age and condition (physical, mental, and emotional) of each spouse
- The length of the marriage
- The standard of living the couple has become accustom to over the duration the marriage
- The education level of each partner, particularly of the spouse seeking alimony. Often times, the spouse seeking alimony needs time to seek further education in order to maintain a good economic position.
- The assets and liabilities of each spouses
- Whether marital misconduct has occurred with either spouse
- Unlike PSS the statute provides that a supporting spouse must pay alimony if he or she committed illicit sexual behavior with a third party during the marriage and prior to or on the date of separation. Likewise, if a spouse is considered dependent and is otherwise entitled to alimony, his or her claim is barred if he or she committed illicit sexual behavior with a third party during the marriage or prior to the date of separation.
Again, each case is different. The court process for determining alimony payment is thorough and depends these dynamics and many more. If you believe you should be awarded spousal support your lawyer can assist you to strengthen your case.