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Attorneys L. Stanley Brown & Allison C. Pauls
OVERVIEW:
There are four potential legal actions or causes of action that grow out of the dissolution of a marriage in which there are children and three in a marriage without children. For purposes of this discussion, these actions will be identified or labeled as follows: (1) an action for child custody and support; (2) an action for post separation support and/or alimony; (3) an action for the division of property (Equitable Distribution); and (4) an action for divorce. Each cause of action involves separate legal rights. With the exception of actually obtaining the divorce, the settlement of these rights can be done through agreements or litigation. To obtain the divorce, litigation is necessary. If litigation is involved, each cause of action can be maintained in a separate lawsuit. However, one or more of these actions can also be combined in one lawsuit with separate claims for relief for each cause of action. In a family made up of parents and children, we would normally combine in one lawsuit the action for (1) custody and support of the children, (2) post-separation support (similar to what many people refer to as “temporary alimony”), and permanent alimony, and (3) the use of certain items of property. Later claims would establish the parties’ ownership rights in or equitable distribution of property and grant the divorce.
1. Divorce.
In North Carolina, we generally obtain divorces on the basis of one year separation. After spouses have been separated for one year, each party is eligible to file suit for divorce. So long as the parties have been separated continuously for one year, there are actually no grounds to defeat the granting of a divorce. “Separation” means not engaging in sexual intercourse and living separate and apart for one year. If you are sexually intimate (more than an isolated incident), the year can begin to start running all over again. If you live together even without being sexually intimate, the year starts running all over again. A wife’s former name may be returned to her as a part of the divorce decree at no additional charge. If you want this service, you must let us know before we prepare the complaint.
2. Temporary Relief.
If your spouse is being physically abusive to you, refuses to provide reasonable support, or refuses to give you information concerning property, the court will hear your evidence and determine if you will get this relief while the case is pending. The court will require both you and your spouse to file a complete financial affidavit of your earnings and monthly expenses and will restrain you both from physical abuse to each other. If you feel you will need this sort of temporary relief, be sure to let us know during your first appointment or as soon thereafter as possible.
Your case will be contested unless you and your spouse agree to all aspects of support, property settlement, and the payment of liabilities, attorneys’ fees, and court costs. If your spouse disputes any of these matters, you do not have an uncontested case and a trial will be necessary on those items on which you cannot agree. After the complaint for relief is filed, the matter may still be settled by consent. The court will decide all unsettled disputes.
3. Property Division/Equitable Distribution.
After your separation and after a complaint for equitable distribution has been filed and served, the court will divide the property owned by you and your spouse. This is called making an “equitable distribution” of the property. There are three types of property for this purpose.
“Marital Property” means all property which was acquired by either spouse or both spouses during the marriage and before the date of separation, and which was owned on the date of separation, unless the property is separate property (i.e., the property was inherited, owned before marriage, or received by one spouse as a gift). Marital property includes all vested and nonvested pension and retirement rights.
“Separate Property” includes all property owned by either spouse before the marriage and property acquired during the marriage by one spouse by inheritance or received as a gift. A gift from one spouse to the other during the marriage is separate property only if the conveyance for the gift states the gift is intended to be separate property. Separate property also includes income from other separate property and property acquired in exchange for separate property.
There is also a type of property called “divisible property”. It is different from marital property, but it also will be divided between the parties by the court. Without going into confusing detail, and in summary, divisible property includes, under certain circumstances, certain portions of marital debt, certain types of post-separation income, certain types of property or property rights received after the date of your separation, and certain appreciation or depreciation in the value of marital property occurring between the date of separation and the date of trial.
Separate property will be kept by the spouse who owns it. Marital property and divisible property will be divided between the parties by the court. There is no precise formula as to how the property will be divided. However, unless there are exceptional circumstances, the property probably will be divided fifty-fifty by net value.
There are thirteen statutory factors the court must consider in structuring the property division. Gross misconduct by a spouse (such as having a paramour) is not considered in settlement of property rights (but can be considered in an action for alimony or post-separation support). If you and your spouse can agree, and if your agreement is reasonable, it will be approved by the court. If you cannot agree, the court will divide the property. Please schedule an appointment with one of our attorneys to go over these factors and discuss any impact they may have on your case.
4. Post-Separation Support/Alimony.
What is generally thought of as “support” can take two forms: postseparation support and alimony. In order to receive support, one must be a dependent spouse who does not have sufficient funds or a sufficient income, without the assistance of the supporting spouse, to maintain the approximate standard of living that he or she enjoyed while living with his or her marriage partner. A supporting spouse is a spouse upon whom the other spouse is actually substantially dependent for maintenance and support or from whom such spouse is substantially in need of maintenance and support. A dependent spouse does not need to be broke or destitute. Instead, dependency seems only to require that the dependent spouse need the assistance of the other spouse to maintain the standard of living established in the last years of marriage.
Postseparation support is spousal support paid until the earlier of either the date specified in the postseparation support Order or until an Order is entered by the Court denying or awarding alimony. Alimony is an Order for payment of the support or maintenance of a spouse or former spouse.
A postseparation support award is primarily based on the financial needs of the parties, considering the parties’ accustomed standard of living, the present employment income and other recurring earnings of each party from any source, their income-earning abilities, the debt service obligations, those expenses reasonably necessary to support each of the parties, and each parties’ respective legal obligations to support any other persons.
At the hearing on postseparation support, the judge must consider any marital misconduct by the dependent spouse that occurred prior to or on the date of separation. The judge may use this factor to decide whether to award postseparation support and to decide the amount of postseparation support. If the judge considers any marital misconduct by the dependent spouse, then he or she must also consider any marital misconduct by the supporting spouse.
Marital misconduct includes (1) illicit sexual behavior (this includes adultery), (2) involuntary separation of the spouses as a consequence of a criminal act, (3) abandonment, (4) malicious turning out-of-doors, (5) cruel or barbarous treatment endangering the life of the other spouse, (6) indignities rendering the condition of the other spouse intolerable and life burdensome, (7) reckless spending of the income of the either party or the waste or concealment of assets, (8) excessive use of alcohol or drugs so as to render the condition of the other spouse intolerable and life burdensome, and (9) willful failure to provide necessary subsistence according to one’s means and condition.
Although marital misconduct (including adultery) committed after the date of separation cannot alone be used as a factor, post-date-of-separation marital misconduct can be used as corroborating evidence to support other evidence of marital misconduct that occurred before or on the date of separation. The court will consider marital misconduct committed during the marriage and prior to the date of separation. If the court finds that the dependent spouse committed an act of illicit sexual behavior before or on the date of separation, it will not grant alimony. If the court finds that the supporting spouse committed an act of illicit sexual behavior before or on the date of separation, it must order that alimony be paid. The amount is discretionary. If the court finds that both the dependent spouse and the supporting spouse have each participated in an act of illicit sexual behavior during the marriage and prior to or on the date of separation, then alimony can either be denied or awarded according to the court’s discretion. If an act of illicit sexual behavior has been condoned by the other party, it shall not be considered by the court. A party condones the illicit sexual behavior of the other spouse if he or she knows of the spouse’s illicit sexual behavior and then engages in or continues to engage in some act or appearance that indicates the behavior has been forgiven.
Alimony will be awarded to a dependent spouse when the court finds the award equitable after considering all relevant factors.
5. Child Custody, Visitation and Child Support.
Child custody, visitation and child support are generally brought together in one action. Mecklenburg County has established a Mediation Program through United Family Services to provide for a nonjudicial determination of the parenting arrangements for separated parents. If you and your spouse cannot agree on custody or visitation issues, the court will order you to participate in the Mediation Program. The Mediation Program allows you to sit down with your spouse and a neutral third party to work out a parenting agreement expressing when each parent will have the child and other essential elements of the child’s welfare.
If custody and visitation cannot be worked out in mediation, then the court can make those determinations. Generally, the court determines which parent can best serve the interests of the child. Factors include the parties’ work schedules, the parent who has been the primary caregiver, stability and continuity. Once a determination of custody is made, the court will order that the noncustodial parent be allowed to spend certain times with the child. This generally includes every other weekend, one night during the week, some of the child’s summer vacation and alternate holidays.
After a determination of custody, the noncustodial parent will be ordered to pay child support. In most cases, the amount of child support is determined pursuant to statutory Child Support Guidelines. The court will look at both parties’ incomes, medical insurance premiums, child care expenses, obligations for other children and any extraordinary expenses. Child support is payable until the child attains the age of 18 or graduates from high school, whichever is the last to occur. The formula for computing child support pursuant to the Child Support Guidelines is based upon a table of combined monthly gross income compared to the number of children to be supported, and can be used to compute child support for combined income up to $300,000 per year and up to six children. If your combined gross income is above $300,000 per year, child support will be based upon the children’s monthly needs and expenses and the ability of each parent to provide for those needs on a case by case basis. Modification of existing child support obligations can be determined based upon a comparison of the existing amount to the new child support computation, and a consideration of any substantial change of circumstances that affects the child(ren). Please meet with one of our attorneys to discuss possible child support amounts and/or factors that may be used to determine non-Guidelines child support or modify existing obligations.
6. Our Fees.
The exact fee will vary with the services you require. Our fees are determined in accordance with Revised Rule 1.5 of the North Carolina Rules of Professional Conduct. This rule states the following: “Factors to be considered in determining the reasonableness of a fee include the following:
(1) The time and labor required, the novelty and difficulty of the questions involved, and the skills requisite to perform the legal service properly.
(2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer.
(3) The fee customarily charged in the locality for similar legal services.
(4) The amount involved and the results obtained.
(5) The time limitations imposed by the client or by the circumstances.
(6) The nature and length of the professional relationship with the client.
(7) The experience, reputation, and ability of the lawyer or lawyers performing the services.
(8) Whether the fee is fixed or contingent.”
Our fees, billing rates, billing practices, and related matters are covered in detail in separate fee agreements that you must read and sign if you employ our firm to assist with your legal matters. Those separate agreements are the “last word” on our fee procedures. Generally, you will be billed at the standard firm rates for the billable time spent on your case. Billable time will be charged in tenths of hours and will be rounded up to the nearest 1/10 of an hour. “Billable time” will be based primarily on the actual time spent specifically on your case but will be affected by other factors adopted by the North Carolina State Bar as a part of the Rules of Professional Conduct (such as the nature of the employment, the amount involved, results obtained, and our experience and ability).
These factors may result in a charge that is either more than or less than that computed strictly on an actual time-spent basis. In particular, the actual time spent is likely to be less than the “billable hours” in areas where our efficiency is aided by forms development, standardization, automation, etc. In contrast, the “billable hours” may be less than the actual time spent where our efforts are duplicated for our convenience. A result fee will be charged in those instances where, because of our work and effort, a more than usual favorable result is obtained.
You will be charged a flat one-time fee to defray our administrative overhead in establishing your file in our office. Also, you will be required to place in our trust account an initial deposit. We may require a minimum reservation fee before we will accept responsibility for your case. The amount varies from case to case depending on the circumstances. You will be billed at least monthly, and this deposit will be applied toward the statements rendered. You will be required to maintain on deposit in our trust account an agreed-upon amount at all times, and upon receipt of statements you will be required to replenish the trust account deposit and pay the balance of any statement remaining unpaid after application of the trust deposit funds.
A typical domestic case requires many separate services, including conferences, obtaining information from you and your spouse concerning your assets, liabilities, income and expenses, and making recommendations concerning property division and support; settlement negotiations with your spouse’s attorney; the preparation or review of a property settlement and support agreement; the preparation and filing of pleadings (or the review of the pleadings filed by your spouse); the preparation of an acceptance of service for your spouse or arranging for the sheriff to serve your spouse with a copy of the complaint; preparation or review of court orders; and attending one or more court hearings.
It is impossible to determine the precise fee until the work has been completed. We cannot even estimate the fee until we have obtained information concerning the assets involved and the complexity of the issues in your case. We will discuss our fee with you after the initial conference when we have discussed the extent of the responsibility we will be assuming. And, upon your request, we will estimate your fees (and revise our estimates) as best we can.
If a trial is necessary, the supporting spouse can usually expect the court to order him or her to pay some fees to the dependent spouse’s attorney unless his/her ability to pay attorneys’ fees and the expenses of the litigation are equal to his/her ability to pay. The amount awarded by the court will rarely pay the full amount of the attorneys’ fees. Regardless of whether you are the supporting spouse or the dependent spouse, you are responsible for paying our agreed fees, but we will of course give you full credit for any payments made on your behalf by your spouse.
7. One Lawyer for Both of You?
Because we are giving legal advice and what is good for one party may be bad for the other, we do not believe it is ethical for a lawyer to represent potentially competing interests. In those isolated instances where you and your spouse have agreed on everything, it may be possible for us to do all of the legal work. To make this determination, one spouse must come to the office and give us the statement of agreement. Even if it looks like you will agree, we follow the policy of representing only one spouse; and if you and your spouse disagree later, we will continue to represent you unless we have been directed otherwise.
8. Reconciliation.
Sometimes divorce seems like the only solution. Often it is not. After the domestic action is commenced, you may decide to change your mind and try to work things out. Our policy is to encourage efforts toward reconciliation; and if you decide to drop the action, you will owe only for the retainer or, if the services exceed the retainer, then for those services actually performed up to that time.
9. Dating.
Don’t prior to your separation, and don’t after your separation without discussing it with us first. You’re married until the divorce is granted. We all know this is not 1890, but your spouse might use it against you, and you may lose some legal rights. Already involved? Can’t resist? You’re an adult. Be discreet. Make your own decision, but be prepared to face the problems that may arise. And -- be truthful and tell us about this.
There can be a risk from illicit pre-divorce sexual intercourse of being sued by the spouse or ex-spouse of your paramour for (a) criminal conversation or (b) alienation of affections. Each of these claims are civil suits which can result in substantial money damages. If you have engaged in this type of conduct, tell us and let us explain these claims to you.
10. Confidentiality.
We must have all the facts to represent you properly. Anything you tell anyone in this office is strictly confidential and will not and cannot be disclosed without your permission.
11. Keeping You Informed.
We will make every effort to keep you informed. You will receive copies of correspondence and documents prepared or received by us. At the time of your initial appointment, one of the members of our nonlegal staff will be assigned to your case to be available to answer your calls. They will be easy to reach and can give you information or take messages but cannot answer your legal questions. They will get messages to your attorney; and if your attorney cannot contact you, they will get back to you. If you call, leave a number where you can be reached in the evening. In some cases a legal assistant will also be assigned to your case. If one is assigned to your case, both the secretary and the legal assistant will be available to help you. Our legal assistants are trained to make things easier and will hold down your costs. Please take advantage of this special service we offer.
12. Our Professional Services.
In performing legal work for you, we provide an experienced attorney, competent staff support, and modern equipment and research library facilities. Your legal problems are given our continuing personal attention in an effort to obtain for you the best results possible in the most reasonable time and at a reasonable cost. However, although we are interested in helping you resolve your personal problems, we are not trained to provide counseling services. If you want counseling (or if we believe you need counseling), we will be happy to provide you with the names of recommended counselors.
13. Your Responsibilities.
We require you to be cooperative and truthful. If you are not, we will not continue to represent you. We also expect you to handle your financial commitments to our office in a prompt and businesslike manner. Please notify us of any change of address or telephone number or if you learn anything that may affect your case.
DO NOT DISPOSE OF ANY FINANCIAL RECORDS DURING OUR REPRESENTATION.
14. General Suggestions.
Your well-meaning friends and associates may offer you advice about your case. Frequently such advice is not accurate, and you should be cautious in following it. The facts surrounding your marriage, divorce, and property are unique and they differ from every other case. Alimony proceedings are very emotional, and parties sometimes use them to seek revenge. Discuss support and property division with your spouse. Be fair. DO NOT discuss with anyone the confidential matters you discuss with us. Friends often pass information to the other party. It can defeat all of our efforts to help you.
15. New Wills.
The North Carolina Probate Code invalidates certain provisions of wills which were made prior to a divorce. Following the signing of a separation agreement or divorce, you and your spouse will probably need new wills. If you wish to pursue this, please ask your staff assistant for a “Will Information Sheet.”
16. Who Should File and When.
Litigation should be filed in only those alimony and property division cases where the issues (whatever they may be) cannot be decided by agreement. It does not often matter which party files the action. However, if it is necessary to file a lawsuit to protect a party from immediate harm or loss of legal rights, settlement can still be attempted while proceeding with litigation.
17. What Are Your Other Options?
Litigation is not always necessary. If you and your spouse are able to agree to custody, child support, spousal support and/or property distribution, you will be able to formalize your agreement in a document called a Property Settlement and Separation Agreement. These documents are fully enforceable as contracts between you and your spouse, but are not easily modified. Our Separation Agreements are quite lengthy and contain several important provisions that parties may not otherwise consider, i.e. estate provisions and inheritance rights, purchase of property prior to divorce, the ability to date without risk of civil liability, etc. Beware of forms from the internet or other non-legal sources, as they may not be enforceable, may leave you open to future litigation, or may contractually bind you to unintended requirements. If you are considering a Separation Agreement, please make an appointment to speak with one of our attorneys. You will need to be informed of all of your rights and should never sign an Agreement without the advice of counsel.
Another option would be to participate in Mediation or Arbitration. Mediation is required by the court for all custody/visitation cases as discussed in the Custody section above. Alternative dispute resolution is also required prior to trial on Equitable Distribution cases.
However, parties are able to consent to private mediation for a longer period of time with the assistance of their attorneys, and may attempt to settle all pending issues during that session. Mediation can be a much faster and less expensive process than litigation, and is generally encouraged by most family law attorneys. Generally, a majority of cases are settled at mediation in a day or two, and for a fraction of the cost of litigation. Arbitration is a process similar to litigation, with several main exceptions. The parties would select a neutral Arbitrator to act as a “judge” and decide the case. Both sides present evidence and testimony to the arbitrator, but in a much more relaxed and informal setting. In contrast to the extreme congestion of the court’s schedule, arbitrations are able to be heard more quickly and with less delay. Please meet with one of our attorneys for a more detailed discussion of your options and the benefits and costs associated with each.
18. Premarital Agreements.
A premarital agreement is a contractual agreement between two prospective spouses to deal with rights and obligations during the marriage and in the event of a future separation, and becomes effective only upon marriage. Among other things, the parties may include (a) rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located, (b) the right to buy, sell, use, transfer, exchange, lease, mortgage, encumber or otherwise manage property, (c) the disposal of property upon separation, marital dissolution, death, or the occurrence of any other event, (d) the modification or elimination of spousal support, (e) the making of a will, trust, or other arrangement to carry out the contractual terms, (f) the applicable state law that governs the agreement, and (g) any other matter, including personal rights and obligations (i.e. doing dishes, laundry, etc.), not in violation of public policy. However, a premarital agreement cannot contain provisions waiving custody, visitation or child support for future or existing minor children. No agreement can deprive the court of its inherent authority to act in the best interests of the children.
Premarital agreements usually require full and complete disclosure of all financial information prior to execution, and may take several weeks to draft and negotiate. Both prospective spouses should have sufficient time to review the agreement and, if desired, seek the advice of an attorney. If you are interested in having a premarital agreement drafted, please contact our attorneys well in advance of the marriage date and be prepared to furnish all relevant financial information.
19. Contacting Us:
You may make an appointment by calling our office at (704) 344-1117 or emailing Natali Pulver at npulver@lawhms.com. Natali will be happy to arrange your appointment, take some initial information, and discuss the process (and cost) of the initial consultation. If Natali is unavailable, Tammy Hamilton is also able to assist you. Both Natali and Tammy will be involved in your case as our dedicated support staff, but they are unable to answer any legal questions. If you need to reach an attorney immediately, please let them know and they will arrange a conference with either Stan or Allison as soon as possible. We look forward to meeting you and working with you on your case!
FORMS AND DOCUMENTS OF INTEREST*:
Local Rules for Mecklenburg County Family Court
Financial Affidavit form (Mecklenburg Co. Only)
Equitable Distribution Affidavit form (Mecklenburg Co. Only)
Affidavit as to Status of Minor Child
North Carolina Child Support Guidelines
Worksheet A: Sole Custody
Worksheet B: Joint Custody
Worksheet C: Split Custody
Council for Children’s Rights
IRS Income Tax Rules for Divorced or Separated Individuals
*Please note that these forms may not be representative of the currently accepted forms for your jurisdiction. More information about specific forms for courts in your area are located at www.nccourts.org.
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