“What type of lawyer are you?” That’s a common question lawyers get from people they meet.
Attorneys in smaller jurisdictions may answer, “I do a little bit of everything,” or “I’m a general practitioner.”
In big-city Charlotte and Mecklenburg County, responses to that same question may include “criminal defense lawyer” or “family law attorney” or “corporate counsel.”
Lawyers in Charlotte tend to limit and define their professional practices by types of legal matters.
Frankly, I think that’s a shame. Small town North Carolina gets in right. That’s especially true if the legal issue involves divorce, children, and other marital problems – Bill Powers, Divorce Attorney
How is it that the former President of the North Carolina Advocates for Justice, and well-known “Charlotte attorney,” has come to that conclusion?
What do “divorce lawyers” do?
Here’s a little known fact, even among legal professionals.
In providing legal services, lawyers who handle matters involving custody, divorce, ED (equitable distribution), and marital unfaithfulness, while they may refer to themselves as “divorce lawyers,” actually do a lot of different things.
They must be prepared to handle an incredibly diverse range of different legal issues.
I have been practicing law since 1992. I’ve litigated many different types of cases. I’ve handled murder charges, personal injury claims, and real estate closings. I’ve drafted wills and powers of attorney. Nothing in my humble opinion is more potentially complicated than a divorce with children – Bill Powers
Our law firm prefers to focus on the individual legal need and the client, rather than practice-group designations.
We refer to ourselves as courtroom lawyers and litigators.
And to do that, Bill Powers has traveled extensively throughout North Carolina to help people with a wide range of different legal needs.
What is “family law” anyway?
Lawyers in Charlotte who refer to themselves as “family law attorneys” don’t take every case or client who walks through the door.
It’s not that they are bad people or unwilling to help.
The vast, vast majority of attorneys I know are compassionate people, dedicated to helping others. Indeed, people go into law because of their passion to make a difference – Bill Powers
As such, if a lawyer declines to accept your case for representation, they may be inexperienced or simply don’t enjoy certain aspects of handling those particular types of legal issues.
In fact, it’s more than OK. It’s downright professional.
Lawyers must be competent to handle a legal matter.
That’s one of the first rules of being a lawyer.
If a lawyer tells you they want to refer you to another attorney for all or part of a case, don’t take offense.
It’s likely not you; chances are they are actually a really good attorney.
It’s both ethical and professional to look out for your best interests rather than take a case that doesn’t fit a particular skill set.
The best lawyers I know aren’t afraid to admit someone else may be a better fit or more experienced to handle something – Bill Powers
The value of practical experience and institutional memory
We are resolute in our belief that no two cases are exactly the same.
While there may be certain similarities in case files, your circumstances, and individual needs, are truly unique.
Divorce often involves careful consideration of several different types of law or areas of practice.
It can be a difficult thing indeed to find an attorney with any level of experience willing to take on a heart balm case involving allegations of “Criminal Conversation” and “Alienation of Affection.”
If you own a home with someone, transferring title to real estate may be necessary as part of getting divorced.
If you have a retirement plan (401K, IRA – Individual Retirement Account, pension plan, savings incentive match plan, etc.), the execution of a QDRO – Qualified Domestic Relations Order is likely appropriate.
If you own a business or a fractional share of a company, it helps to know when to bring in a financial planner or forensic accountant for professional advice.
Some lawyers love being in the courtroom, litigating.
Others only work with collaborative law matters, never seeing the inside of a courtroom or arguing a case to completion.
Prior experiences, both good and bad, very much direct my legal advice and what I think is best for a client. Given the number of different types cases I’ve handled across North Carolina, we bring a fair amount of institutional wisdom and common-sense to the process.
Call Attorney Bill Powers now to schedule your consultation.
Legal consultations for divorce, child support, equitable distribution, visitation, etc., (“family law legal issues”) involve a consultation fee and hourly rates. That is different from other types of cases our law firm handles.
For example, we do not charge consultation fees for DWI charges or other criminal charges in North Carolina. Similarly, we do not charge hourly rates or establish a consultation fee for car accident cases or other “personal injury” matters.
NC Divorce Laws – Topics of Interest
- The First Step in Divorce
- No-Fault Divorce in North Carolina
- What is Collaborative Divorce?
- When should I hire a Divorce Lawyer?
Nationwide, January 6, 2020 has been informally designated as “Divorce Day.” Charlotte divorce lawyers anticipate a sharp increase in call volume immediately following the holidays.
While it may be popular to call it “Divorce Day,” in North Carolina, it might be better entitled, “Divorce Year.”
In part that is because the NC divorce laws, with certain exceptions, ordinarily mandate a minimum period of separation of 12 months before filing for divorce is authorized under the law.
Filing for divorce tends to slow down before Thanksgiving. Planning for separation and divorce spikes at the beginning of every new year – Bill Powers, Charlotte Divorce Lawyer
There are important legal filings and contractual agreements in the period leading up to the formal entry of a divorce order.
That may include things like:
- Post Separation Support (formerly referred to as temporary alimony)
- Child Custody
- Child Support
- Separation Agreement
- Living Arrangements
- Asset valuation
- Equitable Distribution
- Transfer of Real Property and Marital Assets
Separating a marital estate can be complicated.
Even with the most modest of assets, it tends to be a time-consuming process.
What is the first step to getting divorced?
That’s a great question and one we wish more people would ask themselves before taking certain actions.
Unless there is some sort of abusive behavior necessitating the institution of safety measures or a 50B protective order, we generally do not recommend packing up and moving out. There are important legal rights relative to divorce that deserve careful consideration before action – Bill Powers, Divorce Attorney
We strongly recommend you speak with an attorney before doing anything. Timing and preparation can be key.
It also may prove to be a better financial decision to proceed with caution, gathering important documentation and information before saying, “I want a divorce.”
There are generally consequences to actions in family law cases. Prior to making any major, life-changing decision, we recommend you speak to one of our Charlotte divorce lawyers.
Whether it is our law firm or another located in Mecklenburg County, proceeding in haste can make the process unnecessarily expensive, adversarial, and emotionally taxing.
How much do lawyers cost for divorce?
Retaining a divorce attorney in Charlotte may be a bit different from your prior experiences with lawyers.
First, unlike traffic ticket lawyers or attorneys who handle minor criminal charges, there often is an initial consultation fee.
Divorce lawyers in Mecklenburg County (at least at our law office, the Powers Law Firm PA) bill hourly.
Some attorneys also require some sort of retainer. That may involve something called a True Retainer to reserve their legal services. A True Retainer is earned immediately and is not billed against.
A true retainer is paid to ensure the availability of the divorce lawyer. It also may serve to prevent legal representation to an adverse party in the separation and divorce.
Legal fees predicated on hourly work, as earned, are separate and apart from the True Retainer.
Other law firms require a retainer to be held in trust, from which legal fees are billed on a periodic basis.
At Powers Law Firm we charge:
- Initial Consultation
- True Retainer
- Hourly Rates billed weekly and/or bi-weekly
We accept credit cards, personal checks, and other traditional forms of payment. We prefer not to hold funds in trust, instead billing clients after work is performed.
We also prefer to put everything in writing. We want to make sure clients fully understand what is and what is not included in legal representation.
We seek to be completely up front and transparent with clients about the costs of hiring a divorce lawyer. It takes time to go through the contract of representation and explaining anticipated costs – Bill Powers
Expert fees, filing fees, costs of discovery, and other expenses of litigation are not part of legal representation. We also do not charge a flat rate for legal services.
Divorce Day is a good time to start looking for a lawyer and planning, educating yourself on the true costs of getting divorced.
The attorney-client relationship
Prior to speaking with a divorce lawyer at our office, we perform a conflicts check and further confirm availability for legal representation.
We want to help, understanding separation and divorce, especially in matters involving large marital estates, children, and Equitable Distribution, is a trying process.
To be clear, we are unable to assist every person who calls our office.
Our law firm is careful in client selection, limiting the number of matters we undertake for legal representation.
That means we accept a limited number of new clients on an annual basis. We want to be able to focus on the complexity of cases, working hard to make ourselves available for consultation and regular communication.
That means we purposely limit the overall number of clients we represent.
There are some matters we may feel it better to refer an inquiry to another lawyer or law firm.
Our goal is to make clear, from the outset, how the process works and what we do to help people going through difficult times. Legal representation for a divorce is a long-term relationship. We want clients to feel comfortable with us and our professional perspectives – Bill Powers, Divorce Lawyer
Call our law office now to determine the firm’s availability and the costs of legal representation: 704-342-4357
Related Legal Issues and Topics of Interest:
- When is the Best Time to get Divorced?
- Separation and Divorce Tips
- Post Separation Support and Alimony
- I Want a Divorce
- Legal Fees
- The First Step in Divorce
- Divorce after separation
- Surviving the Holidays
Surviving the holidays in a difficult marriage can be difficult at best. Despite that, legal separation and filing for divorce in Charlotte tend to decline during certain seasons.
Pre-existing problems in a marriage may be exacerbated by family commitments and the hustle brought on by the time of the year.
Some parents stay married for the children, thinking to themselves, “I want to give them one more special time before moving forward.”
Those are completely reasonable feelings.
Our job as Charlotte divorce lawyers is not to convince you to separate or end the marriage.
Indeed, once advised of their legal rights, some people choose to stay married and work things out.
That’s OK with us. The key is to determine what is best for you and your family.
We believe good decision-making, like sound legal advice, is predicated on possessing good information – Bill Powers
Anticipating the end of a relationship can be bitter-sweet, if not downright hard.
That is made all the more difficult if there are uncertainties and questions about the application of the divorce laws to any given marriage.
When is the best time to file for divorce?
Frankly, there really isn’t one “best answer” to that question.
Timing can be an important consideration but it is by no means the sole or only factor to take into account.
Family law cases are as varied and different as the people involved in a marriage.
There are differing, complex issues to consider including the education of children, filing of taxes, and above all, your safety and that of loved-ones.
Without question, “surviving the holidays” does not include suffering through physical violence, sexual assault, or other criminal acts.
If you fear for your safety or that of your children, there are protective measures that may be undertaken separate and apart from the formal filing for divorce.
Filing for divorce is often the last step in the ending a marriage in North Carolina. In large measure that is due to the mandatory period of legal separation as set forth in the NC divorce laws – Bill Powers
While we are more than willing to speak about seasons of the year, relative to planning and filing for divorce, that is to some extent putting the cart before the horse.
We believe it best to have all the facts/documentation in hand before filing any type of legal proceeding.
In complex family law matters, those involving child custody and visitation or marital estates requiring careful consideration of financial records and Equitable Distribution, the parties may agree to proceed by way of a Separation Agreement.
Collaborative Divorce may also be an option to consider. “Filings” in court (Clerk of Court) in those instances may be sporadic if not limited.
It is increasingly popular for married parties to work through the specifics of divorce privately.
Assuming there aren’t disputes over Post Separation Support or “PSS” or visitation issues, even if between contentious spouses, many issues may be handled via negotiations, the voluntary exchange of financial records, by and through legal counsel.
We do recommend potential clients begin the process of selecting a divorce lawyer as soon as possible.
Even if you would like to wait until after the holiday season to move forward, it’s a good idea to plan for that.
Lawyers, like doctors, are subject to schedules and pre-existing commitments.
Put simply, if you’d like to sit down and talk a divorce law, call now and schedule an appointment.
We also do not strictly require clients to come to our law office.
We will use secure video conferencing.
Will the judge be mad if I don’t try to work things out?
Generally speaking, the answer is, “No.”
North Carolina, with certain limited exceptions, is considered a no-fault divorce state.
That doesn’t mean Family Court Judges in Mecklenburg County prefer acrimony and/or unreasonable litigants.
That is especially true when considering the best interests of children.
We believe the better practice is to proceed in good faith, seeking equitable and fair resolutions to disputes. Litigation is expensive and frankly, at times, not merited – Bill Powers
As such, the Court does not mandate counseling and working through marital issues.
A judge is not going to try to convince anyone to remain married against their will.
It will demand the parties are honest, that they disclose all relevant records/materials associated with the marriage, and that all Court Orders are followed.
Related Legal Issues and Topics of Interest
- When is the Best Time to get Divorced?
- Separation and Divorce Tips
- Collaborative Divorce
- What is Collaborative Divorce?
- Post Separation Support and Alimony
- I Want a Divorce
- NC Divorce Laws – Chapter 50
Charlotte Divorce Lawyer Bill Powers
If you have questions about your legal options, we may be able to help.
The first step involves calling our law firm and speaking with a legal assistant.
It’s a good idea, prior to meeting, to check for conflicts and availability for legal representation. It’s also a good idea to understand the costs of a formal consultation and retention of the firm as counsel – Bill Powers
Call Bill Powers NOW: 704-342-4357Learn More
You can always elect to represent yourself in most legal matters before the Court. In response to the question, “Is a lawyer required for divorce?” the answer is “No.”
That’s also often true for many other types of legal matters, including traffic tickets, car accidents, and criminal charges.
There are very few instances when a lawyer would be “required,” and even then, as a practical matter, courts rarely demand lawyers get involved.
Our system of justice allows for self-representation.
It is an aspect of the Common Law we adopted (and in part still recognize) as a Brittish Colony.
You may have heard of the legal term for that: Pro Se
From Latin, it roughly means, “for oneself” or “in one’s own behalf.”
Under the NC divorce laws, you may argue for yourself in court. Of course, you can also give yourself a haircut and pull your own teeth if you have a cavity.
There is no law against that.
Arguing a complex legal matter in court can be an overwhelming, if not daunting process.
You could find yourself feeling pretty alone in a crowd, as our court system is often bustling with activity.
While a lawyer is not necessarily required, it is our firm belief that legal representation is a really good idea.
Divorce in North Carolina can be complicated. There are a fair number of moving parts, many of which are interrelated and can easily affect one another. Lawyers aren’t required, but we think it helps to have a divorce lawyer on your side in court – Bill Powers, Charlotte Divorce Lawyer
The “No-Fault” Divorce
Sometimes people use the term, “uncontested divorce,” misunderstanding the meaning relative to the laws specific to each state.
The NC divorce laws are somewhat unique, if not downright unusual in certain circumstances.
That’s nothing to fret about. We believe our laws are fair, reasonable, and just.
The point is, you should not rely on what you think the divorce laws are or what they should be.
What applies in another state may be completely inconsistent with the separation and divorce statutes here.
For example, certain jurisdictions require proof of “fault,” meaning one spouse caused a divorce and/or by their acts, the moving party is entitled to a divorce.
In North Carolina, the fault for divorce is rarely an issue.
Without some pretty unique circumstances, one cannot hold up divorce proceedings, arguing, “There aren’t grounds for divorce.”
If the parties have been legally separated long enough, one party may institute a divorce, even if the other spouse disagrees and wants to stay married.
** Each case is different. There are some instances where the fault may become an issue when divorce is sought due to “grounds.” If you have questions about this or any other legal issue involving your divorce, speak with an experienced divorce lawyer immediately.
Is there such a thing as a “Simple Divorce?”
Frankly, one of the most common things we hear potential clients say is, “It’s a simple divorce. It won’t take much time or effort. We agree about everything.”
With all due respect, it’s our opinion there rarely exists such a thing.
Even in the most modest of financial circumstances, there can and often are disputes about the disposition of assets and perhaps, more importantly, debt.
What you think fair or reasonable or even “obvious” may not necessarily be the case for your spouse.
One would be incredibly remiss in failing to acknowledge a marriage results in, by its very nature, a co-mingling of assets, debts, and legal responsibilities.
If children are involved, issues about custody, visitation, and support are always a possible source of disagreement or dispute.
One of the more common contributing factors to divorce is financial problems.
Even if there are no substantial assets, like a house, cars, or retirement accounts, issues may arise in Equitable Distribution or “ED” in the apportionment and responsibility for the debt in marriage.
As such, prior to doing anything, including separating or having the “I want a divorce conversation,” we think it’s smart to consult with an attorney.
Related Legal Issues – Is a Lawyer Required?
- What is Collaborative Divorce?
- Post Separation Support and Alimony
- I Want a Divorce
- What is Alienation of Affection in North Carolina
- Divorce with Kids
- Legal Fees
Divorce Lawyers in Charlotte – Powers Law Firm PA – Bill Powers
We have found good decisions often require good information.
Getting divorced, or even separated, has consequences.
Prior to making a rash decision, even in instances where the spouses wish to work collaboratively with one another, schedule an office visit with a Charlotte Divorce Lawyer.
Find out how much will it cost to get a divorce. Ask, “How much are legal fees?”
It won’t hurt our feelings if all you do is consult with our law firm and decide it’s better to seek counseling and stay married. Hiring a lawyer is not required.
Our law firm is dedicated to trial skills and courtroom advocacy.
Preparation, careful analysis of the NC divorce laws and consideration of the myriad of financial aspects of child custody, post-separation support, alimony, and equitable distribution are merited.
Separating and ending a marriage can take longer than you think.
Indeed, it may be more complicated than getting married in the first place.
We’re here to help explain these and other legal issues relative to your marriage, your financial condition, and your family life, relative to the divorce laws.
Call now to schedule your confidential consultation.
Consultation fees DO APPLY in family law, divorce, and separation issues at our firm.Learn More
Researching divorce and divorce lawyers is often an emotional but important first step. Considering your legal options is a good idea, especially if you’re not entirely certain you even if want to try separation or possibly end the marriage.
There are a lot of things to consider in addition to the relationship itself. Distribution of your marital estate can be extraordinarily complicated.
You might not realize the entire value of individual and marital assets until looking at things holistically, considering the totality of circumstances.
If you add children and the potential for protracted litigation or a custody dispute, there is a lot to absorb.
It’s OK to be a bit unsure and unsettled. This is a big step. It’s also OK to sit down with us, ask questions, and decide to do nothing at all – Bill Powers, Divorce Attorney Charlotte NC
What’s the first step in separation and divorce?
That’s a great question and a potential source for problems. Under the NC divorce laws, except for very narrow, limited exceptions, you must be legally separated for no less than 1 year before filing for divorce in North Carolina.
As such, legal separation comes first. Indeed, that’s what attorneys refer to as a term of art. The rules for legal separation are specific and not subject to negotiation.
One of the more common errors and misunderstandings people have is failing to fully comprehend what it means to be legally separated. It most certainly is not living in separate rooms, under the same roof, or simply proceeding as if you are no longer married.
That may be the law in other states. It is not the law in North Carolina. In fact, the one-year clock can be reset by renewed cohabitation, even if that turns out to be only for a short period of time.
What is a Legal Separation in NC?
Legal separation begins the day spouses maintain two separate residences, with the intent to continue living separate and apart from each other on a permanent basis. It must be an actual, physical separation with two separate, distinct residences. See N.C.G.S. § 50-6.
Article One of Chapter 50 (the NC Divorce and Alimony statute) mentions “husband” and “wife” when referring to legal separation. Given the adoption and recognition of same-sex marriages in North Carolina, the parties to a divorce, whatever form that may take, must intend to permanently live apart.
Thereafter, either the plaintiff or the defendant in an action for divorce in NC must have resided in North Carolina for no less than 6 months. There are also other legal requirements regarding jurisdiction and proper venue that must be fulfilled prior to filing a lawsuit.
Both parties do not have to consent to the divorce. That only takes one spouse in North Carolina. The law demands proof of legal separation for no less than one year and cannot be waived by mutual consent of the respective parties.
What is Reconciliation?
Resumption of marital relations after separation may later be determined to be a formal reconciliation. Under the law, that legal issue must be resolved pursuant to N.C.G.S. 52-10.2. Resumption of the marital relationship requires a voluntary renewal of a “husband and wife relationship.”
Occasional or “isolated” incidents of sexual intercourse may not constitute a legal reconciliation or otherwise cause problems with the mandatory 1 year separation period. In reviewing whether the parties intend to reconcile, the family court Judge considers the totality of the circumstances, making appropriate Findings of Fact and Conclusions of Law.
Obviously, the General Assembly will need to update the law, recognizing the legal rights (and responsibilities) afforded to same sex marriages in North Carolina.
Bill Powers – Divorce Attorney Charlotte NC
There is a fair amount of discretion and subjective interpretation given to Judges under the divorce laws. While that may lead to some level of confusion at times, it also recognizes the many different types of relationships in North Carolina.
Clearly, the Pine State has room to improve, especially as it pertains to updating and recognizing same sex marital relationships in the various and sundry laws and martial statutes.
Fortunately, the substantial discretion that is given to Judges in settling legal issues also provides the opportunity for compassion and empathy in resolving your legal dispute, recognizing individual circumstances and societal changes.
Our family court judges in Mecklenburg County are some of the best in the state. They are dedicated, hard-working, and committed to resolving marital disputes in a fair and equitable manner – Bill Powers, Divorce Attorney
And with that said, it’s important you take the time to carefully consider your legal options. The “first step,” as we’ve called it, may involve sitting down with an attorney, asking questions, and providing information about your unique circumstances.
No two marriages are exactly alike. What’s important to you and your family, especially concerning life-altering changes to the structure of your interpersonal relationships, deserves careful, measured consideration.
The applicability of federal law in a country where each state is its own sovereign can cause some complexity for issues such as same-sex marriage. Marriage is under the ambit of state law, however, where the federal law interprets state law as a violation of constitutional rights, states must yield to the federal interpretation of the law. Same-sex couples seeking to marry have to gain a clear understanding of the marriage laws governing their jurisdiction. North Carolina is an example of a state where some complexity exists.
Same-Sex Marriage Under Federal Law
To fully understand state law, individuals must understand its relationship to the federal law. On June 26, 2015, same-sex marriage was pronounced as legal nationwide in the landmark case of Obergefell v. Hodges. In that case, the Supreme Court of the United States held that same-sex marriage was a guarantee under the Due Process Clause and Equal Protection Clause of the Fourteenth Amendment of the Constitution. With this ruling, same-sex marriages were recognized in all 50 states and Washington D.C. As of today, about seven counties in Texas and Alabama do not issue marriage licenses to same-sex couples.
North Carolina’s Same-Sex Marriage Laws
In North Carolina, same-sex marriage has been recognized since 2014 after the ruling in General Synod v. Cooper. In that case, the U.S. District Court held that a denial of marriage rights to same-sex couples in North Carolina was unconstitutional. Therefore, North Carolina permitted same-sex marriage before the Supreme Court handed down the federal ruling in Obergefell v. Hodges. Prior to the Cooper ruling, North Carolina had a statutory ban on same-sex marriage that passed in 1996. In 2012, the North Carolina legislature amended the state Constitution with marriage defined as a union between man and woman. After the ruling in Cooper and Obergefell, the 2012 statutory pronouncement is no longer applicable in North Carolina. It is important to note that North Carolina recognized (and still recognizes) domestic partnerships between same-sex couples.
Recent State Bill Introduced Against Same-Sex Marriages
On April 11, 2017, the North Carolina House of Representatives introduced a bill entitled the “Uphold Historical Marriage Act” also known as House Bill 780. The bill sought to recognize marriage as only between a man and woman as pronounced in the 2012 amendment to the state constitution. The bill directly undercuts the ruling in Obergefell, which gives credence to opponents who call the bill “null and void.” The bill has not passed the North Carolina state legislature as of March 2018. Presently, same-sex marriage remains lawful in North Carolina.
Charlotte Same-Sex Marriage Attorneys
Although same-sex marriage laws are permitted in the U.S., some couples still face challenges when it comes to divorce and child custody. Similarly, there is some complexity when same-sex couples that have been cohabitating for years without marrying seek to have their relationship recognized under the law. The experienced lawyers at Powers Landreth PLLC will advise you on your same-sex marital matters to prepare you for the road ahead. Contact us now for a consultation.
At first blush, the North Carolina law requiring a one-year separation period before a court can grant divorce has some saving qualities. One might view the law as creating the space and time for couples to reconsider divorce, which is especially important when children are involved. However, for certain individuals, the one-year waiting period is quite a burden.
One-Year Waiting Period May be Incompatible for Certain Marriages
A 33-year-old woman living in North Carolina separated from her husband and was able to provide solid evidence to a court to warrant a restraining order. Included in her evidence were photos of injuries she claims she sustained from the abuse of her husband. Even with a documented history of abuse and a restraining order, the woman must wait one year before seeking a divorce. During the interim, she had to pay her husband’s health insurance. She also had to endure the psychological distress of knowing that the person who allegedly abused her was legally recognized as her husband. Possible abuse victims like this woman fear for their safety when the state requires prolonging a legal relationship, which brings them pain and suffering. The issue with the one-year waiting period is not limited to psychological pain. Like the woman’s payment of her estranged spouse’s health insurance, sustained legal recognition of the marriage carries certain obligations and requirements abuse victims should not have to maintain. In one respect, the obligation may prove unethical and dangerous.
Domestic Abuse Victim Seeks to Amend G.S. 50-6
The woman’s ordeal prompted her to create a petition requesting North Carolina Attorney General and the state General Assembly to amend G.S. 50-6. The petition seeks an amendment of the one-year waiting period for established abuse victims. The woman’s campaign garnered national attention after her story was featured on Now This, a national news outlet. The campaign sought to highlight the counterintuitive nature of the law. For example, it is rather unethical to require a spouse to remain married to an individual who has been convicted of stabbing him or her. Proponents of amending G.S. 50-6 find no defensible argument requiring an abuse victim to continue a marriage that is dangerous to his or her well-being. North Carolina is not the only state with a waiting period requirement. Other states (Illinois, Maryland and Pennsylvania) actually have a two-year waiting period if the divorce is not mutually consensual.
How Divorcing Abuse Victims Can Manage North Carolina’s One-Year Requirement
As an abuse victim seeking a divorce, the best thing you can do is get out of harm’s way. This includes obtaining a domestic violence protective order and ceasing cohabitation. Even though G.S. 50-6 is still the law in North Carolina, there are additional safeguards abuse victims can request to facilitate their safety and tamper the obligations of the legally recognized marriage. This includes requiring that law enforcement remove the defendant from a shared home, ordering the defendant to stay away from the plaintiff’s home, school or place of work, ordering the defendant to pay his or her own insurance, and ordering the defendant to forfeit any firearms or other weapons. Abuse victims must keep well-documented records of all encounters with their abusive spouse. In addition, hire an experienced family law attorney to aggressively fight for your interests during this critical juncture.
Charlotte Divorce and Domestic Abuse Attorneys
At Powers Landreth PLLC we will provide zealous representation to ensure that the law works on your behalf. Even though G.S. 50-6 is still the law in North Carolina, our experienced family law attorneys can advise you and craft legal strategies to facilitate your one-year transition. Contact us now for a consultation.
Annulment is the legal procedure that declares a marriage void from its inception. The marriage is deemed as illegal when it was pronounced, therefore, the effect of an annulment is retroactive invalidity. Annulment is granted on varying grounds depending on the state at issue including insanity, bigamy and incest.
Voidable vs. Void Marriages
Under North Carolina law, a marriage is that void is subject to annulment. In the alternative, a marriage that is voidable is a marriage that is entered into with a major defect including: (1) incest, (2) false pretenses, (3) impotence, (4) lack of sound mind, and (5) one of the spouses being under the age of sixteen. All of these instances are grounds that the court will consider as voidable. Unlike void marriages, a court can deem a voidable marriage as valid depending on the circumstances of the case. For example, in the case of false pretenses, if you remain married after you discover that your spouse was never pregnant (as was communicated before the marriage), then a court can find validity under the rationale that the pregnancy was not the actual reason for seeking the annulment.
One Annulment Ground in North Carolina
In North Carolina, the only ground for an annulment or void marriage is bigamy. Bigamy is the illegal act of marrying an individual who is already lawfully married to another individual. People who enter into bigamous marriages have entered into a void marriage per the law in all U.S. states. Bigamy, unlike the voidable grounds, is immediately void and the marriage is never valid under law.
How to Get an Annulment in North Carolina
Individuals seeking an annulment must file a claim for absolute annulment. The plaintiff spouse must file the claim in the county in which the defendant spouse resides. The more specific evidence and firsthand witness testimony the plaintiff shows, the more likely the annulment will be granted. With bigamy being the only ground for an annulment, plaintiffs are better served by providing solid evidence of the defendant’s marriage including marriage certificates, photos, or proof of children born of the first marriage.
Effect of a Void Marriage
In divorce proceedings, the individuals are considered as divorced after a divorce decree is issued. Under the law, the parties where married and the decree is the legal recognition of the dissolution of the marriage. After an annulment is granted, the marriage is deemed as to have never existed. You were and are currently single. However, children born to an annulled marriage are considered children of a valid marriage for the purposes of child support and parenting. Unlike divorce, property distribution and spousal support are not available in annulment proceedings.
Charlotte Annulment Attorneys
It is important to involve an experienced attorney to guide you through filing for an annulment or ending your voidable marriage. Annulment and voidable marriages are complex issues, but the Charlotte family law lawyers at Powers Landreth PLLC are ready to simplify the process and provide you with ardent representation. Timely filing of these claims will dictate your success. Contact us now for a consultation.
In the United States, divorcing parties, depending on their state of residence, are subject to equitable distribution or community property rules as it relates to the division of their property. Most states adhere to equitable distribution standards while a minority of states observes community property rules.
Community Property States
Community property encompasses assets that were acquired during the marriage, but excluding gifts and inheritances. Community property does not consider the named owner on the title of the property. It only takes into consideration that the property was acquired during the marriage thus included in the “marital community.” A minority of states adheres to community property rules during divorce proceedings including Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, Wisconsin, Arizona, California and Alaska (by agreement).
Equitable Distribution States
In an equitable distribution state, assets and earnings that are acquired during the marriage are divided equally at divorce. This mechanism is termed “equitable” because the means by which property division occurs is deemed “fair.” Under equitable distribution, the property acquired by both parties during the marriage is likely separated between the two parties, while property acquired before marriage or acquired by one party is usually distributed to the party with ownership. Therefore, a house bought by both parties during the marriage, a joint bank account and a jointly owned small business can be classified as marital property for the purposes of property distribution. Property owned by the parties is presumed as marital property unless it falls under the definition of separate property. In addition, if the court finds one party guilty of fault (i.e., adultery, abandonment, cruelty), the court may order one party to receive less than the equal share of the marital property. Even in this instance, although not equal, the distribution is deemed fair. North Carolina is an equitable distribution state.
Equitable Distribution in North Carolina
North Carolina adheres to equitable distribution rules of property distribution. In North Carolina, once marital property is classified, the court divides the property between both parties. However, the inquiry does not stop at identifying the marital property. North Carolina has promulgated twelve factors for which the court must analyze to determine the most equitable division. The factors include (§ 50-20):
- Income, property, liabilities of each party
- Any obligation of support from a prior marriage
- Duration of the marriage and the age and physical health of both parties
- Need for custodial parent to occupy or own marital residence
- Any expectation of pension, retirement rights that are not marital property
- Direct or indirect contributions made by one spouse for the education or development of the other
- Any direct contribution to an increase of value in separate property during the marriage
- Tax consequences of transferring property
North Carolina Divorce Attorneys
The attorneys at Powers Landreth PLLC have represented and advised clients on equitable distribution matters for many years. We have substantial knowledge in transactional and court processes as it relates to marital property distribution and we will aggressively represent you in your case. Contact us now for a consultation.
What is a Prenuptial Agreement?
A prenuptial agreement is a premarital agreement that is entered into before marriage and sets out the terms of separation. Prenuptial agreements are usually enforceable unless the agreement was entered into under duress, fraud or the agreement sets out unreasonable grounds thus rendering it void as a matter of public policy. Prenuptial agreements are usually signed after the couple enters into an engagement and before the marriage ceremony. Individuals who want prenuptial agreements are usually wealthy individuals, individuals who have been married before or people of advanced age. As mentioned, prenuptial agreements can include any terms over which the couple wants to contract over unless it is illegal. Couples frequently contract over asset and debt distribution, liabilities and child rearing. Some agreements include unusual, but legal terms, surrounding monetary penalties after infidelity as well as who retains custody of a pet during separation. Although couples can choose to contract over a wide range of topics, there are standard requirements contracting parties must follow that will result in an enforceable contract.
What Constitutes a Valid Prenuptial Agreement?
Parties must agree to a written contract that is signed before the marriage in order to constitute a valid prenuptial agreement. Firstly, both parties must freely enter into the contract without any pressure or duress. Secondly, all terms must be reasonable and fair. The terms contemplated in the agreement should apply to both parties where possible as to not bias one party over the other. Further, terms that are too speculative, overly personal (i.e., how a spouse should keep his or her appearance), or far-reaching (i.e., agreements seeking to control the actions of non-parties). Each party must fully disclose all assets, debts and liabilities. This rule usually targets the higher earning spouse who does not want a lower earning spouse to have a clear picture of the sources of their wealth. This rule also applies to spouses who are in heavy debt and seek to hide the debt. Importantly, each party to the prenuptial agreement should hire his or her own attorney to seek legal advice. It is a conflict of interest and unethical for one attorney to represent the interests of both parties who are in effect, adverse parties, for the purposes of the agreement. Even if one party chooses not to hire an attorney, that party should know that they are entitled to an attorney if they so choose.
Common Prenuptial Agreement Disputes
Common disputes that arise out of prenuptial agreements come to bear during marital separation when one spouse seeks to invalidate the agreement. The arguments advanced for the invalidation of a prenuptial agreement can come from credible and non-credible parties. Therefore, each party seeking to invalidate an agreement is subject to a credibility review as long as the agreement bears their signature. Parties who wish to invalidate the agreement can do so if the party believes they did not freely enter into the agreement thus were subject to pressure or duress. Another ground for invalidation is where one party is not aware of their right to seek the advice of legal counsel before signing. In this case, the court will review the totality of the circumstances as well as the education and sophistication of the party to render a decision.
Charlotte Divorce Attorneys
The attorneys at Powers Landreth PLLC have represented and advised clients on prenuptial agreements for many years. We will fight for your right to have an agreement invalidated or enforced based your unique needs. We have substantial knowledge in prenuptial contract law and we will aggressively represent your interests. Contact us now for a consultation.Learn More