Frequently Asked Questions about Family Law in North Carolina
1. If I move out do I give up my rights to the marital home?
ANSWER: Usually I am asked this question by the spouse ending the marital relationship and who does not want to give up their economic interests in the marital home. The answer to the question is NO. Moving out does not surrender your ownership interests or your share of the equity, if any, in the marital home. There is a consideration though as to who has the RIGHT to possession of the marital home until the final division of the marital property. Often times the person who moves out of the marital home will find themselves forced to live elsewhere during the period of time between separation and division of marital property, and with no or very limited access to the marital home.
2. I have been married for twenty (20) years, my spouse has not worked for the last ten (10) years, and I have been the one paying the bills, setting aside money for retirement, savings, and buying property.
a. Do I have to pay support to my non working spouse?
b. Does my non-working spouse get half of everything that I have worked so hard for over the last twenty (20) years?
ANSWER: 2.a. Generally, if you have been the supporting spouse and the other spouse is financially dependant on you for maintaining their standard of living you will have to pay “Post Separation Support” and probably “Alimony”. The only surefire exceptions at the present time for permanent Alimony for the facts above is if the economically dependant spouse commits acts of sexual misconduct prior to the separation (i.e., adultery) and the supporting spouse has committed no such act, or the dependent spouse is cohabitating. Spousal Support is divided in two parts. “Post Separation Support” is temporary in nature and can begin with a temporary hearing right after separation and last up until divorce or the Alimony trial takes place. “Alimony” is spousal support paid by a supporting spouse for the benefit of a dependent spouse for a fixed amount of time, either a set number of years, until a specific event, or permanently. This is called “Permanent Alimony”. Permanent Alimony is modifiable, and in some cases can be terminated by such as a disability of the payor, remarriage by the dependant spouse, or cohabitation by the dependant spouse.
ANSWER: 2.b. The answer is that all property acquired during the course of the marriage is presumed to be marital property and the non-working spouse will be entitled to roughly half. There is a much longer and detailed response, but the simple answer is yes, they are usually going to get half.
3. How much Alimony will I have to pay?
ANSWER: There are factors that go into computing how much Alimony is paid, usually that is done by determining the accustomed standard of living of the dependant spouse, the actual expenses of the supporting spouse, and by taking the accustomed standard of living from the dependant spouse and subtracting any income from that spouse’s total and getting a NET NEED. Then you take the supporting spouse’s income from all sources and subtract that supporting spouse’s standard of living and determine what ability they have to pay.
For instance, if a supporting spouse makes $10,000.00 a month and has $5,000.00 a month in expenses, then he has a $5,000.00 a month ability to pay. Under that scenario, if the dependent spouse has $6,000.00 in expenses and $500.00 a month in income, they have a need of $5,500.00 and the award would most likely be $5,000.00 a month in Alimony. This is in theory only, usually in the “real” world there is not enough money to go around.
I have found that North Carolina courts now sometimes lean toward forcing the “money-maker” to cut back more than the recipient, especially if the support recipient has custody of the children.
4. If I catch my spouse cheating or having an affair, will the court still divide the marital property we have on a 50/50 basis?
ANSWER: In the most general form, the answer to that question is “Yes”. Fault is not usually considered in Equitable Distribution (the division of marital property) in North Carolina. There are some examples however where fault comes into play, either in negotiations or at trial. At trial, if the innocent spouse can show that the person having the affair diminished marital assets in furtherance of their affair, the court can consider that a factor in granting an unequal distribution of marital assets in the innocent spouse’s favor.
Likewise, there are times when one can leverage the cheating spouse to sign a more advantageous agreement through negotiations or mediation in order to protect their paramour from a lawsuit, disclosure, or discovery.
5. My spouse was cheating on me while we were together. What role does that play in the determination of child custody and the determination of who gets custody of the children?
ANSWER: The standard for child custody is whatever is in the best interests of the minor child(ren). This has been applied as placing the child(ren) with whoever was the primary caregiver to the minor child(ren) during the period of the marriage leading up to separation. If the person who was having the affair was absent from the marital home or not involved in the child(ren)’s lives, then this is one way that an innocent spouse could use that information against the other. If the cheating spouse has improperly introduced the minor child(ren) to adult situations or placed them in improper situations with their paramour, then this information can be used in the innocent spouse’s favor in the custody case. The mere fact that the marriage ended because of an affair is not in and of itself sufficient to swing the custody case. There must be a showing at trial of why the infidelity affects either the well-being of the minor child(ren) or the cheating spouse’s fitness as a parent.
6. My spouse works off the books or is self-employed and does not report their income. How do I obtain child support from them?
ANSWER: While it is obviously much easier to obtain child support in a circumstance where both parents are W-2 employees, it is not impossible to obtain child support from someone who is self-employed or works “off-the-books”. Very simple ways of addressing the matter is to look at that person’s bank accounts and/or spending habits. A person who drives a new car and owns their own home and has credit cards and pays their own bill payments usually has left a sufficient paper trail that a diligent attorney can prove, with some degree of accuracy, their income. Also, many times a person with assets and an obviously comfortable lifestyle who claims they are not making any money quickly loses credibility with the presiding Judge and can actually help a child support case along by taking ridiculous or frivolous positions about their income.
7. How is child support determined?
ANSWER: Child support is determined in the vast majority of cases in North Carolina by the North Carolina Child Support Guidelines. (L-1) What happens is information is plugged into the Worksheets (L-2) based upon the facts of a particular case and by working the mathematical formulas a child support amount is determined. Information that an attorney would need in order to tell you how much your child support is going to be, either received or paid out, is as follows:
a. The gross monthly income for both parents;
b. The amount of health insurance that is paid for the direct benefit of the minor child(ren) and who pays same, and the number of persons, other than the child(ren), if any, covered by that policy;
c. The amount of work-related daycare that is paid for the minor child(ren) and who pays it; and
d. Any special needs of the minor child(ren), although that takes the matter out of a normal black and white computation.
8. Who pays for uninsured medical bills and expenses for the minor child(ren)?
ANSWER: Uninsured medical bills are usually handled in one of two ways. The first manner is that uninsured medical bills are usually divided 50/50 by the parents. Another option is that they are divided in a prorata share based upon the percentages of the parties’ income as determined on the Child Support Worksheet, with the base amount as contemplated in the Child Support Guidelines being waived from that computation. Health insurance is a line item used in computing child support on the worksheet and as such is not divided individually.
9. My ex-spouse is not paying child support. Can I legally stop their visitation?
ANSWER: No. Child support and visitation are not linked together in any way and are not codependent upon each other.
10. My ex-spouse is not allowing me to see or talk to my child(ren). Can I legally stop paying my child support?
ANSWER: No. Child support and visitation are not linked together in any way and are not codependent upon each other.