Today we will review a handful of key considerations for child custody situations that arise in North Carolina. Child custody is often the most challenging part of a divorce, with both parents fighting for custody of their children. In order to maintain focus on the children, North Carolina’s statutory approach places a premium value on the best interests of the children.
How Does North Carolina Determine Child Custody?
The most important factor in the determination of child custody in North Carolina is the best interest of the children involved. In determining best interest, the court attempts to examine multiple angles of the child’s domestic reality. As a result, the working and living situations of the parents come into play. The presence or threat of domestic violence is also an important consideration.
It should be noted that the parents can decide child custody outside of the courts. If the parents are able to come to a mutually acceptable agreement concerning child custody, then the matter is settled. Though if the court determines that the agreement is not in the best interests of the children, they can intervene.
Do North Carolina Laws Favor the Mother over the Father in Child Custody?
In short, no, North Carolina does not favor the mother’s rights over the father’s rights to child custody. Both parents have equal rights to custody. The courts will apply the best interests of the child standard to determine the proper custody arrangement.
Do Children Have the Ability to Influence the Custody Arrangement?
Unlike other states, North Carolina does not impose an age limit on children voicing an opinion on custody preferences. The court has discretion to hear testimony from children concerning their preferred custody arrangement. Though even if the court does hear such testimony, there is no requirement to abide by the child’s preferences.
Are Child Custody Arrangements Permanent in North Carolina?
Child custody arrangements are not permanent in North Carolina. There is a specific process in place for modifying child custody arrangements. Parents must demonstrate a substantial change in circumstances. It does not matter if the change in circumstances is positive or negative. But the change in circumstances must have a direct impact on the children involved.
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There can be numerous challenges in any matter concerning child custody, divorce or other aspects of family law. To overcome these challenges, it can be useful to seek counsel from a skilled family law attorney. The Charlotte legal team at Powers Landreth PLLC is prepared to assist you today.Learn More
Our topic for discussion today involves the North Carolina approach to equitable distribution. In simple terms, equitable distribution refers to process of the court dividing up marital property between the spouses during divorce proceedings. It is important to note that equitable distribution only occurs when the spouses cannot agree amongst themselves to a fair distribution of their property.
How Does North Carolina Define Equitable Distribution?
In Section 50-20 of the North Carolina General Statutes, we can find the state-specific definition for equitable distribution. Essentially, North Carolina allows either party to a divorce to ask the court to determine a fair division of spousal property. At that point, the court will examine both the marital property of the spouses. Then the court will determine a fair division of that property between the spouses. For reasons we will discuss below, the court will not divide the separate property of the spouses.
How Does North Carolina Define Marital Property?
Section 50-20 also provides the state-specific definition for marital property. Essentially, North Carolina defines marital property as all of the real and personal property acquired by either spouse during their marriage. It is generally understood that anything acquired after marriage and before separation or divorce shall be considered marital property.
Examples of marital property include pension, retirement and other deferred compensation, whether vested or unvested. The same applies to military compensation rights under the Uniformed Services Former Spouses’ Protection Act, whether vested or unvested.
How Does North Carolina Define Separate Property?
Section 50-20 also outlines an exception to the marital property rule concerning separate property. Essentially, separate property refers to real and personal property acquired before marriage. Separate property also refers to professional or business licenses that are not transferable.
Separate property can also include property acquired during marriage by either spouse directly, such as through a will or gift. But this exception requires specific language indicating that the property is intended for one spouse only and should not be considered marital property.
Whether you are dealing with equitable distribution, divorce or other aspects of family law, there are innumerable considerations to take into account. In such situations, it can be extremely helpful to consult with a knowledgeable family law attorney to ensure that you take an appropriate course of action. The legal professionals at Powers Landreth PLLC in North Carolina are eager to assist you today.
Today we will explore the North Carolina approach to collaborative divorce. Established in 2003 via amendment to the North Carolina General Statutes, this legal process leverages alternative dispute resolution to help spouses complete the divorce process as quickly and efficiently as possible.
How Does North Carolina Define Collaborative Divorce?
In Chapter 50, Article 4 of the North Carolina General Statutes, we can find the state-specific definition for collaborative divorce, which is referred to legally as collaborative law.
Under Article 4, collaborative law is a legal procedure that allows a husband and wife to resolve divorce and other marital disputes without involving the courts. Instead of going through lengthy court proceedings, the spouses work together to find a mutually acceptable solution to their problems.
Throughout this process, the spouses will have to account for the standard issues in any divorce. They will have to agree upon the proper division of their property, distributing ownership as they see fit. If the spouses have children together, they will work together to determine the custody arrangements. In certain cases, they will also agree upon the presence and amount of child support, alimony and other support payments.
What are the Requirements for Collaborative Divorce?
As outlined in Article 4, the husband and wife must agree in writing as to the parameters of their collaborative divorce. To be effective, the husband, wife and their lawyers must all sign the writing. The written agreement must outline all relevant understandings concerning the collaborative divorce, such as property division, child custody and support payments.
There is an additional detail to account for with collaborative divorce agreements. If the spouses are unable to reach an agreement through the collaborative divorce process, the attorneys must withdraw from the case. Those same attorneys are not allowed to represent the spouses in future divorce proceedings.
Are Collaborative Divorce Proceedings Confidential?
Article 4 provides that collaborative divorce proceedings are confidential and privileged. This means that all statements, communications and work product related to the collaborative divorce would be inadmissible in future divorce proceedings. This applies to statements, communications and work product from the spouses, attorneys and third-party experts.
Do You Have Questions for a Skilled Family Law Attorney?
Whether you are dealing with collaborative divorce or other aspects of family law, it is vital to tread carefully. Fortunately, an experienced family law attorney can analyze your situation and help you work toward a positive outcome. Located in Charlotte, North Carolina, Powers Landreth PLLC is prepared to assist you with your family law case. Don’t hesitate to reach out to us today for professional assistance.
Today we will explore the North Carolina approach to child custody and child support. Before we delve into specifics, there is an overarching consideration we need to consider first. North Carolina places a high importance on the best interests of the child. In any determination of child custody or support, the court will examine what circumstances will yield the best outcome for the children involved.
What are the Different Types of Child Custody in North Carolina?
There are three major types of child custody in North Carolina.
First, we will discuss sole custody. In this situation, one parent has sole decision-making power on behalf of the child or children. The other parent does not have any rights concerning the child or children.
Second, we will discuss joint legal custody and joint custody. Joint legal custody means that both parents share decision-making power on behalf of the child or children. Though joint legal custody does not necessarily involve shared physical custody. Joint custody means the parents share equally in decision-making power and physical custody of the child or children.
Third, we will discuss primary custody. In this situation, the parents share decision-making power on behalf of the child or children. But the breakdown of physical custody is less even. One parent has physical custody during the week; the other parent has physical custody on the weekends.
Having covered the basics of child custody, we can move on and explore the North Carolina approach to child support.
How Does North Carolina Determine Child Support?
The North Carolina Court System provides a number of worksheets to help calculate child support. Interested parties are encouraged to review applicable worksheets to gain a better understanding of the factors involved.
In most cases in North Carolina, there are four primary factors involved in the calculation of child support:
- Gross monthly income of one parent;
- Gross monthly income of the other parent;
- Monthly health insurance allocation of children; and
- Childcare costs related to work.
It is important to note that if the parents make less than $300,000 combined annually, then child support will be determined by the North Carolina Child Support Guidelines.
Is Child Support Permanent in North Carolina?
No, child support is not permanent in North Carolina. The limit on child support is generally the child’s 18th birthday or high graduation. Though there are extremely rare circumstances in which child support may extend beyond the child’s 18th birthday or high graduation.
It is important to note that the amount of child support can also change over time. If there is a substantial change in circumstances for either parent, then the courts may increase or decrease child support contributions.
Do You Have Questions for a Skilled Family Law Attorney?
Whether you are dealing with child custody or support, divorce or other aspects of family law, it is prudent to be cautious. There is a need to balance your personal interests against the needs of your family. Even the smallest issue can lead to disastrous consequences. That is why it is crucial to consult with a skilled family law attorney to design a strategic and balanced approach. Otherwise, you may not put yourself in the best possible position for a successful outcome.
Based in Charlotte, North Carolina, Powers Landreth PLLC has 20 years of combined legal experience. If you have questions about child custody or support, divorce or other aspects of family law, please feel free to contact us at your earliest convenience.
North Carolina is one of only a small handful of states that allows for the filing of a lawsuit and cause of action against your unfaithful spouse’s lover. The North Carolina Court of Appeals recently upheld the ability in some cases to sue the person who had the affair with your spouse. This is called “alienation of affection,” or interference with a marriage, and “criminal conversation,” or adultery, as the basis.
The court of appeals noted, “They further the state’s desire to protect a married couple’s vow of fidelity and to prevent the personal injury and societal harms that result when that vow is broken.” They added, preventing “personal injuries and societal harms is a substantial government issue.”
The court rejected the argument that the laws are unconstitutional because they violate individual rights to intimate sexual activity and expression with other consenting adults.
So, what are alienation of affection and criminal conversation, and how do they come into play in North Carolina family law matters?
Alienation of Affection
When you bring a cause of action for alienation of affection, you’re suing a third party you believe to be responsible for the demise of your marriage. In most cases, this is a spouse’s lover, but that’s not always the case. In some matters, someone like a therapist or clergy member have advised someone to seek divorce, which falls under alienation of affection.
Alienation of affection cases require proof of elements like:
- There was a marriage with love and affection between spouses to some degree;
- The love and affection were indeed alienated and destroyed; and
- The malicious acts of the defendant contributed to or were responsible for that loss of love and affection.
The standard of proof in these causes of action typically revolves around showing the defendant intentionally engaged in acts that would impact the marriage, not necessarily that they intentionally set out to destroy someone’s marriage.
Criminal conversation is a cause of action that typically accompanies alienation of affection lawsuits, and is a tort that arises from the act of adultery itself. The term conversation is an antiquated reference to sexual intercourse, which is pretty much obsolete except as used in this legal setting. In order for criminal conversation to apply, there must be an actual marriage between plaintiff and the spouse, and there must be sexual intercourse between the defendant and plaintiff’s spouse during that marriage.
Amendments to the Law
Not surprisingly, lawsuits for alienation of affection are hotly debated, which has led to some modifications to the law in recent years. Additional terms under § 52-13 Procedures in causes of action for alienation of affection and criminal conversation include:
- There is no cause of action if the alienation of affection and criminal conversation occur after the plaintiff and plaintiff’s spouse physically split
- An action shall not be commenced more than three years from the last act of the defendant giving rise to the lawsuit
- You can only sue a natural
Understanding Your Legal Rights
Alienation of affection and criminal conversation cases are not always applicable in every situation, but it’s important you understand your legal rights and available options. If you think your spouse may be cheating, contact the experienced family law attorneys at Powers Landreth PLLC today for a consultation.
Commonly referred to as prenuptial agreements, premarital agreements are made between potential spouses before marriage. These agreements outline certain rights and responsibilities for each spouse, such as the division of property upon death or divorce.
In Chapter 52B of the North Carolina General Statutes, we find the Uniform Premarital Agreement Act. This act outlines the framework for premarital agreements in North Carolina.
Under Sections 52B-3 and 52B-4, we find the requirements for premarital agreements in North Carolina. First and foremost, premarital agreements must be written and signed by both spouses. Without a writing signed by both spouses, premarital agreements are not valid. Additionally, even if one spouse does not receive any benefit under the agreement, it is still valid and enforceable.
Similar requirements exist for amendments to or revocation of a premarital agreement. Both spouses must execute and sign a writing outlining the changes or elimination of the agreement. Even in the absence of consideration, where one spouse does not receive any benefit, the amended or revoked agreement can be valid and enforceable.
North Carolina outlines eight different areas under which prospective spouses can create a premarital agreement. Premarital agreements in North Carolina are allowed to govern:
- The rights and obligations regarding property owned by either or both spouses;
- The right to conduct real estate transactions (purchase, sale, transfer, mortgage, etc.) concerning property;
- The division of property upon certain marriage-ending events, such divorce or death;
- The right to change or remove obligations concerning spousal support;
- The establishment of estate planning mechanisms (wills, trusts, etc.) to carry out all or part of the agreement;
- The control and ownership of the death benefit from a life insurance policy;
- The right to choose which legal system governs the agreement; and
- The ability to create other conditions, so long as those conditions conform to the law and public policy.
There is an important exception. The parties to a premarital agreement are not allowed to prevent children from receiving child support. That is one area that is off limits for premarital agreements in North Carolina.
Do You Need Legal Counsel from an Experienced Family Law Attorney?
Whether you are dealing with a prenuptial agreement, divorce or other aspects of family law, there is a lot to consider. Personal needs are balanced against family wellbeing. With so much on the line, it can difficult to know where to start. That is where an experienced family law attorney can make a true difference, explaining your rights under the law and planning an appropriate strategy. That way you will be in the best position for a successful outcome.
Based in Charlotte, North Carolina, Powers Landreth PLLC has 20 years of combined legal experience in matters of family law. If you have questions about a prenuptial agreement, divorce or other aspects of family law, please feel free to contact us at your earliest convenience. We will work tirelessly to help you overcome any obstacles in your path. The attorneys at Powers Landreth PLLC are available 24/7 by phone at 704-342-4357, by fax at 980-209-0029 and online by completing a simple form.
If you follow pop culture at all, you will recall that a little more than ten years ago now, actress Renée Zellweger and country singer Kenny Chesney were briefly married. The marriage lasted only a matter of months. However, a divorce was not the legal action that they took to end their marriage—it was an annulment. Annulments are not as common as divorces because they are only allowed in certain circumstances, but it is worthwhile to discuss what they are in case they apply to a situation relevant to you.
While a divorce ends a marriage of two people who no longer want the marriage, an annulment essentially treats the marriage as though it never existed. In North Carolina, two people can request that a court annul their marriage if they can show that it is an invalid marriage. The technical terms that the state and the courts use are “void” and “voidable.” If a marriage falls into either of those categories, then a court can annul it. Most of the situations below are voidable marriages, as opposed to void marriages. The only void one is essentially that of a bigamous situation. Such a marriage is invalid from the beginning, but it is still best to request an official annulment.
Examples of Annulment-Worthy Marriages
North Carolina lists a few different situations in which the courts will grant an annulment to a married couple.
If the marriage is an incestual one, then that marriage qualifies for an annulment, per North Carolina law. Specifically, the two parties must be closer than first cousins.
If one of the parties is under the age of sixteen and there was no prior court order allowing the marriage, then it may qualify for an annulment. However, the situation is trickier if a child is involved. If the girl or woman is pregnant or has already had a child with the other party, then the courts will not annul such a marriage. The only exception is if the child unfortunately died, either at birth or afterwards.
If one of the parties is physically impotent, then that is a ground for annulment. Along a similar vein, if one of the parties was mentally incapable of entering into the marriage and understanding what it entailed, then the courts may grant an annulment.
If a man marries a woman under the impression that she is pregnant with his child and it then turns out that she actually was not, then he may have grounds for an annulment.
This was simply a very brief overview of situations that can lead to an annulment, as opposed to a divorce. If you think that your situation may fall into one of the categories that we mentioned, then reach out to us. We will be able to help you fully analyze your circumstances and compare them to the different fact scenarios that have gone before the courts of North Carolina to determine the best steps forward. Call the experienced family law attorneys at Powers Landreth PLLC today.
Stress, pressure, and fear will make ordinary people do unordinary things–manipulative and even deceitful things. Some divorcing spouses go so far as to make up stories about their partners that damage their reputation and chances to be granted child custody, marital property, or alimony. If you are facing such accusations, you need to act now by contacting an experienced Charlotte, North Carolina divorce attorney.
False Allegations of Domestic Violence are Rare, But Do Occur During Divorce
While false domestic violence or abuse allegations are rare, they do affect spouses negatively during divorce. Specifically, a protective order (50-B) against one of the spouses could seriously impact the decision of the judge in many circumstances. According to research and reported by the Colorado Coalition Against Domestic Violence, in 63 percent to 74 percent of domestic violence cases, there is sufficient evidence that abuse occurred. In the remaining cases, there is insufficient evidence or a mistaken belief that abuse occurred. Very rarely does a person make a false allegation, which makes it all that much more difficult to prove in court.
Accusations of Drug or Alcohol Addiction, Sexual Abuse, or Child Abuse and Neglect Can Destroy a Parent’s Chances of Custody
Allegations of child sexual abuse during divorce cases only make up about six percent of cases, though at least two thirds of those cases are substantiated by evidence. Other allegations that could seriously jeopardize your ability to receive child custody, or even visitation rights, include:
- Alcohol or drug use;
- Child abuse;
- Spousal abuse;
- Animal cruelty;
- Committing crimes without getting caught; and
- Exposing the child to inappropriate activities or material.
Gambling, Criminal Allegations Affect Asset Division and Alimony
Even though North Carolina is an equitable distribution state, as per § 50-20, meaning that marital property is divided “fairly,” though not necessarily evenly, an accusation of abuse, an addiction, committing a crime that lead to a criminal record, or other offenses could mean that you are not awarded your fair share of the marital property. Because North Carolina can is a no-fault state for divorce, meaning that the court does not “care” in many instances who caused the divorce and will go ahead with equitable distribution of assets, there are some scenarios where allegations could disrupt this. For example, if one spouse spent a lot of money gambling, on another sexual partner, or somehow deprived the family of income in some other unfaithful, deceitful, or dishonest manner, such as committing a crime, the court may side with the other spouse that cast doubt on the other. The court may not divide the assets or allocate alimony in the same manner as it would had no false allegations been made.
Contact Powers Landreth PLLC Today for Experienced Charlotte Divorce Legal Counsel
The Charlotte attorneys at Powers Landreth PLLC will help you clear your name from any false accusations and ensure that you are given a fair chance at child custody, visitation, spousal support, and asset division. Contact us today for assistance; our attorneys are happy to answer any questions you may have.