Category Archives:Family Law

How is Child Support Calculated in North Carolina?

parent-child holding handsNorth Carolina Child Support Guidelines

Child support generally is resolved by an application of the North Carolina Child Support Guidelines, which are adopted by the Conference of Chief District Court Judges at least once every four years.  The current guidelines were adopted in 2011, so they will likely be revised sometime in 2015. 

When do the North Carolina Child Support Guidelines Apply?

The guidelines apply as a rebuttable presumption in every child support case, which means that a Judge will use them in calculating the parties’ respective child custody obligations, unless one or both parties can show the court why they should not apply.  It is possible to request a deviation from the Child Support Guidelines. Presently, the Guidelines are applicable to cases where the combined household incomes are less than $300,000.00 per year.

How do the North Carolina Child Support Guidelines Work?

In most cases, child support is calculated based upon the following:

1. The gross monthly income of each parent

2. The monthly cost of work-related child care; and

3. The monthly cost of health insurance benefits for the children. Health insurance benefits include vision and dental insurance.

What About Extraordinary Expenses?

The court may consider extraordinary expenses which are defined in the Guidelines as including (1) uninsured medical expenses in excess of $250.00 per year; (2) medical expenses for costs that are reasonably necessary for orthodontia, dental treatments, asthma treatments, physical therapy and any insured chronic health problem; (3) expense for attending any special or private elementary or secondary school to meet the particular educational needs of a child; or (4) transportation expenses for the child to travel between the parents homes.

The Judge will generally require the parents to share uninsured medical and dental expenses in the same proportions as their respective incomes.

What Happens if the Court Finds that the North Carolina Child Support Guidelines Don’t Apply?

If the Guidelines are not applicable or if the Judge deviates from the Guidelines, the court determines child support based upon the reasonable needs of the child, taking into the account the accustomed standard of living of the family and the reasonable needs of each parent.  The Judge then considers the incomes and earning abilities of the parents, and their respective abilities to contribute to the needs of the child, taking into consideration their own needs for support. This is a very unscientific process, and results often vary widely from case to case.

When Do Child Support Obligations in North Carolina Stop?

Child support is payable until the child is 18. If the child has not graduated from high school when he or she reaches 18, then the obligation continues until the child graduates from high school or stops attending school on a regular basis, whichever first occurs.

Guidelines do not require parents to contribute toward the cost of private school education, unless the child has some special educational needs which cannot be met in a public school system.

The court cannot order a parent to contribute to a child’s college education. When parents are negotiating an agreement for child support, they may address these costs.

The tax laws provide that the custodial parent is entitled to the dependency exemption of the child in connection with income tax returns unless the custodial parent waives such right. 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.

What If I Need Help With Child Support?

A variety of factors can affect child support, including the number of nights each of the parties’ children spend with each parent, whether one or both parents are self-employed or own businesses, whether one or both parents receive a significant amount of “fringe benefits” from their employment, etc.  It is important to consult with an experienced family law attorney if you have questions about child support.  Contact our office today to schedule a consultation to discuss your child support needs.

 

Post Separation Support and Alimony: What’s the Difference?

AlimonyOften, as part of the separation and divorce process, couples have to resolve issues related to post-separation support (PSS) and alimony. 

What do the terms “Post-Separation Support” and “Alimony” Mean?

PSS and alimony are both claims for spousal support. An essential requirement for both claims is that the claimant be a “dependent spouse” and that the other spouse be a “supporting spouse.” A dependent spouse generally is someone who is actually substantially dependent upon the other spouse for his or her support and maintenance or is substantially in need of maintenance and support from the other spouse. Basically, this means that the person does not have sufficient income to maintain the standard of living which he or she enjoyed during the marriage without financial support from the other spouse.

At the risk of oversimplification, post-separation support is basically a form of temporary support which is usually payable until the Court can resolve the alimony claim.

In post-separation support claims, the Court can consider a number of economic factors. A dependent spouse will be entitled to an award of post-separation support if, based upon consideration of these factors, the Court finds that the resources of the dependent spouse are not adequate to meet his or her reasonable needs and the supporting spouse has the ability to pay post-separation support.

In alimony cases, the Court awards alimony to the dependent spouse upon a finding that one spouse is a dependent spouse, the other spouse is a supporting spouse, and that an award of alimony is equitable after considering all relevant factors. The statute lists a number of factors which the court may consider.

What about “fault”?

What role does “fault” play in post-separation support and in alimony claims? In the statutes, “fault” is generally referred to as “marital misconduct” and includes a variety of conduct, including the following: 

(a) Illicit sexual behavior engaged in by a spouse with someone other than the other spouse;

(b) Abandonment;

(c) Indignities which render the condition of the other spouse intolerable and life burdensome;

(d) Reckless spending of the income of either party or the destruction, waste, or concealment of assets; and

(e) The excessive use of alcohol or drugs which renders the condition of the other spouse intolerable and life burdensome.

Theoretically, fault on the part of the supporting spouse is not a prerequisite to obtaining an award of post-separation support or an award of alimony. A judge can make an award of PSS or alimony without any evidence of marital misconduct. As a practical matter, however, the presence or absence of fault may influence a judge, both in regard to the question of entitlement to support, and also in deciding the amount and duration of support. Likewise, marital misconduct on the part of the dependent spouse will be relevant to the amount and duration of support. If a dependent spouse participates in an act of illicit sexual behavior during the marriage and prior to the date of separation, the Court is precluded from awarding alimony. If the supporting spouse committed an act of illicit sexual behavior during the marriage and prior to the date of separation, then the Court must make an award of alimony, although the amount and duration are within the discretion of the Court.

How long does alimony last?

The amount and duration of alimony payments are entirely within the discretion of the Court. Unlike child support cases, there are no guidelines for determination of the amount and duration of alimony. Alimony could be a single lump-sum payment, or it could be monthly installments payable indefinitely until the dependent spouse dies or remarries.

If alimony is awarded by the Court, the Court’s judgment will not be “final”; the Court’s rulings with regard to the amount and duration of alimony payments will be subject to possible future modification in the event of the occurrence of substantial changes in circumstances affecting one or both parties. For example, if the payor spouse is injured and becomes disabled, and experiences a substantial decrease in income, that spouse can petition the Court to reduce or suspend future alimony payments. This is not to say that the Court grants every such request, but only to say that such request can be made and sometimes is granted.

Although alimony is generally awarded for a period of time, it is subject to an earlier termination if either party should die, or if the dependent spouse should ever re-marry or cohabitates with another adult.

When Divorce Goes to the Dogs: Custody of Family Pets During a Divorce

When a marriage ends through separation and/or divorce, two of the primary issuesDog the spouses have to deal with are custody of minor children and dividing marital property and responsibility for marital debts. But what about beloved family pets? For many of us our dogs, cats, fish and other pets are an important part of the family. What happens when you and your spouse can’t agree on what happens to Fido or Felix?

Are Pets Property or Family Members?

Courts usually to take one of two approaches to how to handle custody or possession of pets during a divorce. Some states view custody of family pets the way they view custody of minor children: they analyze the needs of the pet and determine what is in the pet’s best interest and then award custody and/or visitation accordingly. Other states, including North Carolina, view family pets as marital property to be included in the overall process of classifying, valuing and dividing the marital estate. 

How Do North Carolina Courts Handle Pets in a Divorce?

In North Carolina, family pets are lumped in with other marital assets such as furniture, bank accounts, jewelry, vehicles, etc. which are first classified as either “marital” or “separate” property, and then each given a value, the total of which is then usually equally divided between the parties. In classifying a pet as martial or separate property, a court will look at whether one of the parties owned the property before the marriage or whether the pet was acquired during the marriage. If acquired during the marriage, the pet is then valued based upon replacement cost to acquire a pet of a similar breed, age, condition, etc. Intrinsic, emotional, or sentimental value is not taken into consideration in valuing the pet. Since the pet can’t be divided in half, possession of the pet will be awarded to one spouse or the other, and the spouse not receiving the pet will offset the pet by receiving other marital property of equal value. 

What If I Don’t Want a Judge to Decide Who Gets Fido?

An alternative to allowing a court to award a pet as part of the equitable distribution proceeding would be to include provisions related to “custody” and/or “visitation” of a pet in a Separation Agreement (learn more about those here).  Using this approach, the parties can craft an arrangement where each is allowed to enjoy time with a pet and share in the cost of the care and feeding of the pet.  If there are minor children of the marriage, we often counsel our clients to consider having the family pet follow the same custody schedule as the children.  Having a beloved companion with them as they navigate a shared custody arrangement is often reassuring for children.

What Should I Do If I’m Worried About Losing My Pets?

If you are in the middle of or thinking about a separation or divorce, and worried about what might happen to your pets, contact our experienced family law attorneys to arrange for a consultation to discuss your concerns. 

We've Been Separated for a Year ... Now What? The Basics of NC Divorce

Couple FightingMany of our clients have heard or understand that they must be separated for one year before they can obtain a divorce (if not, see our previous post here).  Many of them have questions about what to do to finalize their NC divorce once the year has passed.

WHAT IS AN ABSOLUTE DIVORCE?

An absolute divorce in North Carolina is the judicial severing of the marital relationship between husband and wife.  Although much of the disentanglement of ending a marriage often takes place through a Separation Agreement, the only way to legally end the actual marriage (besides the death of one of the spouses or an annulment, which aren’t covered by this post) is by the entry by of a Judgment of Absolute Divorce by a District Court Judge or, in some cases, the Clerk of Superior Court. The entry of the divorce judgment has important consequences such as ending the couple’s right to inherit from one another and changing the way the couple holds title to real estate.  In many instances, any claims spouses have against one another for alimony, post-separation support and division of marital assets are cut off by the entry of the divorce.

HOW IS AN NC DIVORCE OBTAINED?

An NC divorce judgment can only entered after a Complaint (a lawsuit) is filed by one of the parties.  One of the spouses must have lived in North Carolina continuously for at least six months before the case is filed.  Once the Complaint is filed, it must be served on the other party.  This is generally done by certified mail or by having the Sheriff in the county where the defendant resides delivery a copy to the defendant.  Once the defendant has been served with the Complaint, he or she generally has 30 days to file an Answer, admitting or denying the allegations in the complaint.  The allegations regarding divorce are usually limited to when and where the parties were married, when they separated, and that they’ve been separated for over one year at the time the Complaint was filed. Women seeking to resume the use of their maiden name upon entry of the divorce should include a request to do so in the Complaint (if they are the Plaintiff) or the Answer (if they are the Defendant).

Once the time to file the Answer has expired or an Answer admitting all of the allegations contained in the Complaint has been filed, either party may request that a Judgment for Absolute Divorce be entered.  This Judgment is usually entered by a District Court Judge in open court; however, in certain limited situations, North Carolina law allows the Clerk of Superior Court to enter the divorce judgment.  The NC divorce process generally takes approximately 60-90 days to be completed from the filing of the lawsuit to the entry of the judgment.  It is important to understand that the divorce judgment must be entered before either of the parties can re-marry.  We encourage our clients not to make any plans for a marriage ceremony until their divorce judgment has been entered, because occasionally delays occur which cannot be predicted.

DO I NEED A LAWYER?

It is possible for individuals to represent themselves in divorce proceedings in North Carolina.  However, the entry of a Judgment of Absolute Divorce has many important legal ramifications.  We recommend seeking the advice of an experienced family law attorney before you make a decision on whether or not you should represent yourself.  Many family law attorneys will charge a relatively minimal flat fee if their services are limited to obtaining an NC divorce for a client.  If you are interested in learning more about obtaining a divorce, please contact our office to arrange for a consultation.

 

 

When am I Separated?

Broken Wedding RingOne of the most commonly asked questions we receive from our family law clients is “When am I legally separated?”  In North Carolina there are two requirements for a married couple to become separated:

1. The Husband and wife must be living “separate and apart” from one another.  North Carolina courts have interpreted “separate and apart” to mean under separate roofs.  One spouse sleeping in the guest room or on the couch is not sufficient.

2. One or both of the parties must intend to remain separate and apart from one another.  It is not necessary for this intention to be communicated to the other party.

On the date that both of these requirements are met, the couple is legally separated.

This date becomes important later, as the primary basis for absolute divorce (the legal termination of the husband-wife relationship) in North Carolina is a separation of more than one year.  Provided that the couple has remained separated for one year and has not resumed the marital relationship (isolated incidences of sexual intercourse don’t count – but aren’t a good idea – for a variety of reasons), a divorce lawsuit can be initiated at the end of the one year period.

We’re often asked whether any written document is required to establish the fact that a couple is legally separated.  In terms of establishing the date of separation for the purposes of obtaining a divorce, the answer is generally “No.”  However, often there are other reasons for establishing in writing that a couple is separated.  The most common of these is so that the couple can begin the process of dividing marital property.  Another reason is to establish each party’s rights and obligations related to custody and support of minor children.  

In these instances, the fact that the parties are separated is often established in a written agreement known as a “Separation Agreement”. A Separation Agreement is a contract between the husband and wife and is usually negotiated by the parties or their attorneys.  

Coltrane, Grubbs & Orenstein’s family law attorneys have years of experience in preparing and negotiating separation agreements.  If you’d like more information regarding the separation process, we’d be happy to assist you.  Please contact our office to schedule a family law consultation.