Q

Can I start dating after my husband and I separate from each other?

A

Although post-separation adultery may not be a basis for awarding or declining to award alimony, it can be used as corroborating evidence to support an allegation that adultery occurred prior to the separation.

In North Carolina, it is possible for a spouse to bring a lawsuit against someone who has alienated the affections of and/or had sexual relations with a spouse's husband or wife. The adultery cause of action is called criminal conversation. Any extramarital affairs or dating relationships on the part of either party should be brought to the attention of your attorney so that he or she may advise you of the law in this area.

Q

How much will the whole divorce cost?

A

It's impossible to predict how much your divorce will cost, although your lawyer may be able to give you a range. The cost of the case depends on many factors, some beyond your lawyer's control. These factors include the kind of lawyer your spouse hires, how you and your spouse behave in the litigation and the court to which your case is assigned. Generally, the more things you and your spouse can agree on, the lower your fees will be.

Q

Is there anything I can do to help keep the fees down?

A

Yes. Be actively involved in your case. Take the time and trouble to learn what's going on. Follow your lawyer's instructions. Volunteer to help with the work whenever possible. Have reasonable expectations of your lawyer. Watch for ways to settle issues. Don't insist on fighting to the last drop of blood over small issues, or for a supposed principle. When talking to your lawyer, avoid long, detailed stories unless your lawyer assures you it's necessary information.

Q

Can I make my spouse pay my fees?

A

A court may order a spouse to contribute to the fees of the other spouse. If you get such an order, your lawyer will credit what is actually paid to your account. But seeking such an order does not change your obligation to pay the balance that you owe to your own lawyer. Also, many lawyers do not accept cases on the possibility that the other spouse will be required to pay the fee by court order.

Q

My friend who got divorced got x result. Will I?

A

Friends who have been divorced can raise unrealistic expectations. Every case is different, and what happened to your friend is almost always irrelevant to your case.

Q

Do I have to pay income tax on the child support that I receive? Does my husband get to deduct this from his income?

A

Unlike postseparation support and alimony, child support is not taxable as income to the recipient parent and is not a tax deduction to the payor parent.

Q

I just moved to North Carolina and want to get divorced. Can I get a divorce in North Carolina even if I was not married here?

A

You can get divorced in North Carolina even if you were married in another state, but you or your spouse must meet the residency requirements for North Carolina. At least one of the spouses must be a citizen and resident of North Carolina for at least six months prior to filing a complaint for absolute divorce in order for North Carolina to have jurisdiction to grant the divorce.

Q

Do I have to file a joint income tax return with my spouse?

A

No. Married persons are not required to file joint income tax returns, but there can be significant tax savings by filing jointly. However, it is important to remember that if you do file a joint income tax return with your spouse, you could be liable for any taxes that are due on that joint return, including interest and penalties.

So, if your spouse does not report all of his/her income and the IRS later learns of this, you could be responsible for payment of back taxes, and your wages could be garnished in order to pay this tax liability. Your attorney and your accountant should work together to determine the most advantageous filing status for you and whether it is in your best interest for you to file a joint return with your spouse.

Q

If we don’t file jointly, then which of us takes the children as dependents?

A

You and your spouse can agree on which parent can claim the children. If you and your spouse cannot agree, then under the Internal Revenue Code, the custodial parent will be entitled to claim the minor children as dependents on his/her income tax return. However, in North Carolina if a parent who receives child support has minimal or no income tax liability, the court may consider requiring the custodial parent to assign the exemption to the supporting parent.

Q

I read that the average family law case costs $10,000, is that true?

A

It all depends on the issues in dispute and the willingness of the parties to resolve the issues in a fair and reasonable manner. Some parties will argue over every issue and will spend thousands and thousands of dollars in attorney’s fees and other litigation expenses. We have found that parties can keep their attorney’s down, if both parties have reasonable expectations and are willing to make some concessions in order to work towards settlement.

We emphasize that it takes a willingness on both parties to resolve the case. If your spouse is unwilling to negotiate, has some psychological issue that prevents him/her from dealing with you rationally and reasonably, or the parties simply cannot agree on an issue and both have good, relevant legal arguments, then you may forced to spend more in attorney’s fees and other case related costs.

Q

A friend of mine used a divorce planner when she and her husband divorced, do I need one?

A

A divorce planner can be very helpful in determining cash flow needs, financial planning as well as dividing up the marital estate. Talk with your attorney to determine if you need to consult with a divorce planner in your case.

Q

Our marriage broke up because my wife had an affair, do I still have to pay her alimony?

A

If the court finds that the dependent spouse participated in an act of illicit sexual behavior, such as sexual intercourse or other deviant sexual acts, during the marriage and prior to or on the date of separation, the court shall not award alimony.

If the court finds that the supporting spouse participated in an act of illicit sexual behavior during the marriage and prior to or on the date of separation, then the court shall order that alimony be paid to a dependent spouse. If the court finds that the dependent and the supporting spouse each participated in an act of illicit sexual behavior during the marriage and prior to or on the date of separation, then alimony shall be denied or awarded in the discretion of the court after consideration of all of the circumstances.

Q

I had an affair ten years ago, I told my spouse about it, we went to counseling, and my spouse forgave me for it. Now that we are separating, my spouse says that I will have to pay her alimony because of that long-ago affair. Is that true?

A

Any act of illicit sexual behavior by either party that has been condoned, or forgiven, by the other party shall not be considered by the court.

Q

What role does marital misconduct play in dividing the marital estate?

A

Marital misconduct, such as adultery, is not relevant in the litigation of property rights. The division of property in North Carolina is based upon the economic factors described above.

Q

Do I have to give my spouse half of my pension? If so, how does she receive it?

A

If the pension rights were earned during the marriage and prior to the date of separation, then the pension is marital property and subject to division between the spouses.

There are two ways to deal with the pension. You can value the pension and the spouse who owns the pension can keep the entire pension and the non-owning spouse can receive other marital assets to offset her interest in the pension, or the pension can be divided pursuant to a domestic relations order and the non-owning spouse will receive her share of the pension as a lump sum payment, at the time the spouse owning the pension begins receiving payments under the pension plan, or in some other payment format as permitted by the pension plan’s administrator.

If you are the non-owning spouse, make sure that your attorney understands the importance of survivorship rights/options under the pension plan. You do not want your interest in the pension to die with your spouse.

Q

Will the children have to testify in a custody proceeding?

A

A custody dispute can be very stressful and emotional for parents, so imagine how a custody dispute affects a child who loves both parents. Rarely, should a child testify in a custody proceeding. However, there are some extraordinary cases where it is necessary for a child to testify. If a child does testify in a custody proceeding, the child may testify in open court in front of his/her parents; however, the better practice is for a child to talk with the judge in the judge’s office.

Q

When my child is 12, he can choose who he wants to live with, right?

A

No. There is no specific age at which a child can unilaterally make decisions regarding his custody. The basic rule is that the wishes of a child “of sufficient age to exercise discretion” are entitled to consideration by the court, but are not controlling. The bottom line is that the court always has the authority to decide what custody provisions are in the best interest of the child.

Q

What if one parent moves out of state? How does that affect custody?

A

The judge still evaluates what would be in the best interest of the child. The judge may consider factors such as:

1. advantages of the relocation in terms of its capacity to improve the life of the child;
2. the motives of the custodial parent in seeking the move;
3. the likelihood that the custodial parent will comply with visitation orders when he or she is no longer subject to the jurisdiction of the courts of North Carolina;
4. the integrity of the non-custodial parent in resisting the relocation; and
5. the likelihood that a realistic visitation schedule can be arranged which will preserve and foster the parental relationship with the non-custodial parent.

If there is an existing custody order in place and a parent then decides to relocate out of state, the move itself will not constitute a substantial change in circumstances warranting that the court modify the existing court order. The judge will have to determine how the moves affects the child and will need to consider the factors listed above in determining if there has been a substantial change in circumstances affecting the welfare of the child.

Q

How is the amount of child support determined?

A

Like most states, North Carolina has adopted Guidelines for determining child support. Under the Guidelines, child support is determined using an “income shares model.” The income shares model is based on the concept that child support is a shared parental obligation and that a child should receive the same proportion of a parent’s income that he/she would have received if his/her parents lived together. The custodial arrangement may also have an impact on the amount of child support.

For example, child support will be determined using Worksheet A of the Guidelines if the child lives primarily with one parent for at least 242 nights during the year. Worksheet B will be used if each parent has custodial time with the child for at least 123 overnights each year, and there is a true sharing of the child’s expenses between the parents. Worksheet C is used when the parents have split custody (i.e., one child lives primarily with one parent, and another child lives primarily with the other parent).

To access the North Carolina Child Support Guidelines and the child support worksheets, see https://nddhacts01.dhhs.state.nc.us.

Q

What about health insurance coverage for my child? Is that part of child support?

A

Yes. A court has the authority to order a parent to maintain health insurance for the benefit of a child when health insurance is available at a reasonable cost. When determining child support, the cost for the child’s health insurance premium is added to the basic child support obligation determined under the Guidelines and then prorated between the parties based on the parties’ respective incomes.