Our furry family members are considered property by North Carolina law, so they are divided like all the other goods in the home. Sometimes we can agree to a “custody sharing” plan for the dog. If there are children, sometimes the dog will follow the same schedule as the kids. If the parties cannot be flexible enough to share the dog, then ultimately the judge will decide who keeps the dog.

Most people refinance the mortgage and take advantage of a “cash out” to access the equity in the home and buy out the other spouse. It may be necessary to refinance the mortgage anyway if your wife’s name is on the mortgage, as refinancing or selling are the only ways to get her name off the mortgage. Another way to buy your wife out is to offset what you owe her with another asset. For example, if your wife has a large retirement account that you are entitled to half of, you can waive all or some of your share in exchange for keeping all the equity in the house. If you are entitled to alimony, you can also waive all or some of that alimony in order to keep the equity in the home. We like to get creative in order to achieve our client’s goals.

Children are generally not given a choice in their custody cases. When they are 18, the court no longer has jurisdiction over them, and at that time they can choose where they want to live. However, judges realize that teenagers can be difficult to “force” to do their homework, much less to visit with a parent with whom they have a strained relationship. Therefore, many times, the age of the child and the child’s relationship with the parent are considered important factors in the court’s final determination. Counseling is usually ordered in cases like these, and the child and parents are expected to participate. Both parents are required to encourage the child to repair the strained relationship and visit with both parents.

The law presumes that each spouse receiving half of the marital estate is fair. This presumption can be rebutted in some cases, and one spouse could receive more than 50% of the marital estate. Your pension is an asset.  In determining how much of your pension is marital, we look at years of service during the marriage and use something called the Siefert formula. In this example, 3/4 of the pension is marital. We call that the “marital portion.” If the court divides the marital estate equally, your wife would be entitled to half of the marital portion. Assuming you are now retired and you are receiving $4,000 in pension income, $3,000 of that is marital, and your wife is entitled to $1500 per month in this example. The numbers are not always this straightforward, but you get the point. The fact that your wife did not work outside the home does not lessen her entitlement to the pension.

Mediation is required in North Carolina. There are two types of mediation in family court cases, custody mediation and Equitable Distribution/Financial mediation. Custody mediation is a free service provided by the state of North Carolina and takes place at the courthouse. Attorneys are not allowed to attend this mediation. You will first attend an orientation that explains everything about it and then a date will be scheduled for your mediation. You will be in the same room as the other party, but the mediator will make sure things stay civil in the mediation. Only the issue of child custody will be discussed. If an agreement is reached, the custody mediator will draft a parenting agreement for you and your attorney to review after the mediation is over. Usually custody mediation lasts approximately an hour. ED/Financial Mediation is much different. The purpose of this mediation is to attempt to resolve the property distribution. You can also try to resolve other issues in your case as well, like alimony and child support. Your attorney will be with you in one room and your spouse and his/her attorney will be in a separate room. A certified financial family mediator (who is also usually a family law attorney) will go back and forth between the rooms to help the parties negotiate. In both cases, the mediator is a neutral third party who does not make decisions about your case. They only help facilitate a resolution that you and your spouse ultimately agree upon. Frequently these mediations take an entire day to complete. At the end of the day, if an agreement is reached, both parties will sign a final Consent Order or other form of Settlement Agreement before they leave the mediation. Both parties must share the cost of the mediator. In both situations, what happens at mediation stays at mediation, meaning neither party is allowed to tell judge in court what offers were on the table.

No, you do not have to go to court. You can enter into a Separation and Property Settlement Agreement with your spouse and avoid court altogether.  A Separation and Property Settlement Agreement is a valid contract which is recognized as binding in the state of North Carolina as long as certain requisite elements are met. It is important not to try to draft your own Separation Agreement and to have an attorney draft it for you to ensure that it is valid. Many forms found online are not sufficient or enforceable. If done correctly, a Separation and Property Settlement Agreement can resolve property distribution, spousal support, child custody and child support without you ever having to darken the doors of the courtroom.

If your custody case is high conflict you may need a parenting coordinator. A high conflict case is one that includes excessive litigation, anger and distrust, verbal abuse, physical aggression or threats of physical aggression, difficulty communicating about and cooperating in the care of the minor children, or other conditions in the discretion of the court. A parenting coordinator is a neutral third party that is appointed by the court to assist the parties in communication and coparenting. A parenting coordinator can make decisions consistent with the parties’ custody order when the parties cannot agree. The parties must have the ability to pay for the parenting coordinator, who usually charges an hourly rate. A parenting coordinator can help with decisions related to transition time, pickup, or delivery, sharing of vacations and holidays, method of pickup and delivery, transportation to and from visitation, participation in child or day care and babysitting, bed time, diet, clothing, recreation, before- and after-school activities, extracurricular activities, discipline, health care management, alterations in schedule that do not substantially interfere with the basic time-share agreement, participation in visitation, including significant others or relatives, telephone contact, alterations to appearance, including tattoos or piercings, the child's passport, education, and other areas of specific authority as designated by the court or the parties.

You can settle your case by entering into a Consent Order with the other party. A Consent Order is an agreement between the parties which is formalized into a court order. It is signed by both parties and the judge, and filed with the clerk of court. If the parties enter into a Consent Order, they do not have to go back to court to have a judge decide their issues. Consent Orders can be entered into at any time during the pendency of a case, including before, during, or after mediation.

Most clients just want their case to be over before it even begins. Collaborative law is an area of the law where attorneys help the parties resolve their disputes by a Separation and Property Settlement Agreement or a Consent Order. The end result still leaves you with a final document with terms upon which you can operate, but allows you to get to that result without a court battle. Our law firm offers this service if clients are interested in this route.

North Carolina is one of a few states that still recognizes the “heart balm torts” of Alienation of Affection and Criminal Conversation.  These claims can be brought against the “paramour” of a spouse.  To prove alienation of affection, you must show that the paramour alienated you from your spouse and destroyed the genuine love and affection that existed between you and your spouse.  To prove criminal conversation, you must prove that your spouse had intercourse with someone else before you separated.  Just because you can bring these claims does not necessarily mean you should.  Even if you “win”, you may only receive nominal damages.  You should carefully consider whether this action is worth your time and money.

Once your spouse indicates a desire to separate permanently and moves out of the marital residence, you may change the locks.

Once you separate and move out of the marital residence, you may not re-enter the property unless you have been invited.  Even if your name is on the lease or the deed, you do not have an automatic right to return to the property.  In fact, you could be charged with domestic criminal trespass if you enter the property without permission.  If your ex allows you to go back to the marital residence, make sure that you have permission in writing to protect yourself.  .

In North Carolina, a judge may order your ex to pay your legal fees for claims related to child custody, child support, postseparation support and alimony but it is no guarantee.  When it comes to child custody lawsuit, you must show that you are an interested party acting in good faith and you are without sufficient means to defray the expense of the suit.  In child support actions, the judge must find that the party who is ordered to pay support refused to provide adequate support at the time the action was initiated.  For alimony and postseparation support, a dependent spouse can request that his/her legal fees are paid by the supporting spouse.  Any award of attorney’s fees is in the complete discretion of your particular judge.  The judge carefully considers the circumstances of each case when deciding whether to award any attorney’s fees and how much is fair under the circumstances.

Child support is based on the income of both parents, the number of overnights, the cost of the child’s portion of health insurance, work related childcare expenses and any extraordinary expenses.  There are calculators online to help you estimate the monthly amount that is owed.  Child support should begin the first day of the month following the physical separation.  If you are supposed to pay child support but wait until the judge enters an order, you may also have to pay attorney’s fees for the opposing party in addition to child support arrears.

The first thing you should do is talk to them, politely, to try to work out the problem. The other party may not be aware of what is required by the order, so send them a copy of the order. Set up a time to talk with the other person about what the order says and what you would like the other parent to do differently. Try not to be accusatory. Maybe there are problems that are interfering with their ability to comply with the order. Try to work out a solution before you resort to getting help from the court system. If the violations involve custody, try to get help from a teacher, healthcare provider or therapist to help the offender understand why the behavior needs to change for the sake of the child. If these strategies don’t work, you can confer with an attorney about sending a letter to the offender or the offender’s attorney. The last resort should be hiring an attorney to file a motion for contempt. Going to court takes time and money and causes hard feelings.  In addition, there are limited remedies a judge can employ to induce someone to follow the order. The primary way a judge induces a person to comply with a court order is putting them in jail, either to punish the offender (criminal contempt) or to induce the offender to do what the order requires (civil contempt). You can also be required to pay the other person’s attorney’s fees.  If the violations involve custody, in addition to jail and attorney’s fees options, a judge may change the custody order if a motion to modify custody is also pending. If the violation is failure to pay child support and your finances are tight, you can seek help from your local child support agency. The child support agency can help you enforce the order for free or at a nominal cost.

Only a court order signed by the judge can excuse you from paying support like the order requires. If there is a court order for support, even if you and the other person agree that you don’t have to pay and you stop paying, a judge can still make you pay the full amount you failed to pay.  A judge cannot change the amount of support or excuse you from paying the full amount of support until after you file a motion to modify, so you should file a motion as soon as you figure out that you can’t pay. If you have savings or other resources to pay the amount ordered until you can find a new job, you should use those resources to continue to pay the full amount of support. The judge can hold you in contempt of court for not paying support if you had the ability to pay.  If you were laid off due to reasons that are not your fault, the judge should reduce your support obligation at least temporarily until you can find suitable work. A failure to pay support when you had the ability to pay can result in the judge sending you to jail.

There are many changes that could result in the modification of a child support order. If there are substantial changes to your income or the other parents income, or the cost of health insurance, or the cost of childcare costs, or the custody schedule changes, or either of you have another child, the child support amount could increase or decrease. In addition, every three years, the NC Child Support Guidelines change. If three years pass from entry of the last child support order and the amount of child support changes by at least 15%, then the child support order can be modified on that basis alone. You can exchange income information with the other parent if they are cooperative and run a child support calculation at this website: https://ncchildsupport.ncdhhs.gov/ecoa/cseGuideLines.htm. If the other parent does not cooperate, an attorney can help you file a motion and gather the information needed to calculate child support by subpoena or otherwise.

It depends. If there is no court order and your ex-husband agrees you can move, then feel free to move after you work out a long distance schedule with him. If there is a court order in place and the move would interfere with the time allocated to him, you should not move unless a new order is entered establishing a long distance custody arrangement. If your ex-husband objects to the move with your child, the judge will consider whether the relocation is likely to improve the life of the child; your motives in seeking the move; the likelihood that you will comply with a long distance visitation order after you move out of North Carolina; the likelihood that a realistic visitation schedule can be worked out to preserve and foster the relationship between the child and the other parent; and the reasons the other parent does not want the relocation. If the other parent persuades the judge that your moving out of state with the child will adversely affect the child, the judge could order primary custody to the parent who will remain living in the same location. The judge will enter a ruling focused on what is in the best interest of the child after considering the facts and both parents preferences.

If you alimony obligation is in a court order entered after 1995, or if you have a private alimony agreement that does not include cohabitation as a termination factor, your alimony obligation will probably continue despite you ex-wife living with her boyfriend. If you can show that her needs have decreased because the boyfriend pays all her expenses, the obligation could be reduced substantially. If your alimony payment is required by a court order entered after 1995, even if the order is silent about cohabitation, or the private agreement for alimony includes cohabitation as a termination event, then you can file a motion to terminate the alimony obligation based on cohabitation. NCGS 50-16.9 says that “cohabitation” is the act of two adults dwelling together continuously and habitually in a private heterosexual relationship, even if the relationship is not solemnized by marriage, or a private homosexual relationship. Cohabitation is evidence by the voluntary mutual assumption of those marital rights, duties, and obligations which are usually manifested by married people, and which include, but are not necessarily dependent on, sexual relations.” Whether someone is engaging in cohabitation is complex and difficult to prove. Before you file the motion, you should gather persuasive evidence about the living arrangement to build your case to end the alimony with the help of a private investigator.