FREQUENTLY ASKED QUESTIONS
The following are some of the most frequently asked questions in family law and our answers:
• Is it necessary to bring “paperwork”to the initial consultation?
Although it is not necessary to bring your financial documents to the initial consultation, it will be helpful for you to be prepared to discuss your assets and debts, as well as income of both parties. If you are or have been involved in a court case, or if you and your spouse previously signed a prenuptial or separation agreement, it will be very useful to bring those documents into the initial consultation.
• What do I do if my spouse gets violent?
Call 911 immediately. Your safety and the safety of your children are the most important concerns. You may thereafter want or need to obtain a domestic violence protective order, or “50B Order”, from the court. If your file for protection from domestic violence, the court will conduct an emergency hearing. Another hearing will be scheduled 10 days thereafter, at which point your spouse has the right to contest your complaint. It is recommended that you are represented by an attorney at the “10-day hearing”. You may also wish to contact Victim’s Assistance at (704) 336-4126.
• Should I move out of the house now?
Unless you and/or your children are in danger of domestic violence, do not move out of your house until you have consulted with your attorney. The circumstances surrounding either spouse’s moving out of the marital residence can be very important to the court in ruling on custody, spousal support and property division. You need to discuss with your attorney in advance whether and under what circumstances you may or should move out.
• I suspect that my spouse is being unfaithful. Should I confront him/her with that information before coming to the initial consultation?
No. You should wait and discuss your concerns with your attorney before confronting your spouse about suspected infidelity.
• Should I hire a private investigator?
It depends on the circumstances. A PI can be helpful in some cases, but is unnecessary in other cases. Your attorneys should be involved in the selection and retention of any private investigator to better assure that the PI is pursuing the evidence that is needed in your case.
• When can I begin dating?
You should discuss this question with your attorney before you start dating or “seeing” someone, as this decision may have significant implications in your case. North Carolina law permits a court to consider “marital misconduct” by one or both spouses in deciding post-separation support and alimony cases. Dating might create an issue in a child custody case. Because of the potentially detrimental effect your dating may have on your case, it is highly recommended that you consult with your attorney first before entering into a dating situation.
• How do I get a “legal separation”?
In North Carolina, there is no legal concept of “legal separation.” You are either separated or not. There are two requirements to be separated: 1) you and your spouse are residing in separate places of residence (separate bedrooms in one house is not sufficient), and 2) at least one of you must have the intention to remain living separate and apart from the other spouse. It is not necessary for both spouses to consent to the separation. It is not necessary to have a Separation Agreement or any other document in order to be separated. A Separation Agreement or other document is necessary when the parties make certain verbal agreements about aspects of their separation (i.e., custody and support of children, division of property, etc.) and they want an enforceable agreement.
• Do I have to wait a year after separation before I can get my claims settled?
No. You may, and in most cases should, be able to resolve issues of custody, child support, spousal support, and equitable distribution (property division) at the beginning or during your year’s separation. You may not, however, file for an absolute divorce until after you have been separated continuously for over a year.
• Can I withhold visitation if child support is not being paid by the other parent? Can I withhold child support if I am not allowed visitation with my children?
The answer to both questions is “No”. Under North Carolina law, child support obligations and visitation rights are independent claims which are not related to each other. If you are being denied visitation, or if your spouse is not paying child support, there are other remedies under law to address properly these issues.
• How old does a child have to be before she can decide where she wants to live?
Children do not get to decide where they want to live, regardless of how old they are. Some judges may want to hear from an older child in a custody proceeding, but ultimately, it is the judge, and not the children, who decide custody.
• What is joint custody?
“Joint custody” can mean many different things. There can be “joint physical custody” or “joint legal custody”. Parents who share joint legal custody have equal decision-making authority on major issues, such as health and education. Joint physical custody means that the parents share time with the children. There is no magic custody formula or one correct physical parenting plan. We recommend different custody arrangements depending on the ages and circumstances of the children and the dynamics between the parents. Please see the section entitled “Child Custody” for more information about custody.
• How is child support determined?
North Carolina has adopted the “North Carolina Child Support Guidelines” which are used by the courts and attorneys to compute child support in most cases. The Child Support Guideline formula computes child support based on several factors, including each parent’s income from all sources, work-related child care costs, the costs of the children’s medical/dental/vision insurance, and the number of overnights the child spends with each parent. It is possible that your case will justify a “deviation” from the Child Support Guideline formula, based on your particular situation. Please see the section entitled “Child Support” for more information about how child support is calculated.
• How is alimony decided?
Spousal support, otherwise known as “post-separation support” and “alimony”, is not awarded in every case. To be entitled to receive spousal support, you must be a “dependent spouse” and your spouse must be a “supporting spouse”. Unlike child support, there is no formula available to compute the amount of spousal support. Whether you or your spouse is entitled to alimony and the amount of alimony that should be paid is dependent on the particular facts of your case. Please see the section on “Spousal Support” for more information.
• Do I have to go to court to settle my claims for custody, support and property division?
No. Many cases are settled without ever filing a lawsuit or going to court. Mediation or arbitration may be appropriate in your case as the means to settle your claims. Because you will be addressing very important legal matters through settlement negotiations, you need to retain an attorney to do the necessary preparation and discovery of assets, debts and income so that your rights are adequately protected.
• Can I get attorneys’ fees from my spouse?
Under certain circumstances, attorneys’ fees and costs may be legally recoverable by one spouse from the other spouse. Attorneys’ fees incurred in connection with claims for child custody, child support and spousal support are potentially recoverable from the other spouse. Attorneys’ fees incurred in connection with equitable distribution, or property division, cannot be recovered from your spouse under North Carolina law. Your attorneys’ fees and costs can be agreed upon through settlement negotiations; otherwise, it will be up to a judge as to whether you or your spouse is legally entitled to attorneys’ fees and costs.
• Can I make my spouse sign a joint income tax return?
No. If you are not yet divorced on December 31 of the tax year in question, you and your spouse are eligible to file a joint return; however, both of you must agree to do this. Consult your accountant for advice in determining your tax status
• What is the difference between mediation and arbitration?
Both mediation and arbitration are alternatives to court. Mediation is a type of negotiation. The parties and their attorneys meet with a neutral person (usually another experienced family law attorney), who is the mediator. The mediator acts as a go-between who helps the parties negotiate and make proposals and counter-proposals to try to reach some agreement to settlement the case. The mediator has no power to make any decisions for the parties. If the parties do not reach an agreement, the mediator declares an “impasse,” and the case goes back to court. Arbitration is very different. The parties and attorneys select a neutral person (again, usually an experienced family law attorney) to help them resolve their case. However, the arbitrator is vested with the power to rule on and decide the dispute, just like a judge. Essentially, the arbitrator is a private judge. With limited exceptions, the decision of the arbitrator is final and binding upon the parties. Your attorney can explain these processes in more detail and help you decide if either is appropriate for your case.
• Does your remarriage affect your child support obligation?
Generally, no. The obligation to support children from a first marriage takes priority over the voluntary decisions to remarry and incur a support obligation for a new spouse.
• Can I get any of my spouse’s retirement?
If the retirement benefits were accumulated during the marriage and before the date of separation, the benefits are considered to be marital property and are subject to division. Benefits which are acquired before the date of marriage or after the date of separation generally are not marital property and cannot be divided by the court. Investment gains and losses after the date of separation may be subject to division. There are potential income tax consequences related to the transfer of retirement benefits; you should consult your attorney and/or tax adviser.
• How much will my case cost?
In some cases it is possible for the attorney to set a flat fee or estimate the cost within a narrow range. There are two categories of such cases: 1) cases which have a single basic issue, and the facts are not really in dispute (for example, a person who seeks a modification of child support due to one child “aging out”); and 2) the parties have reached a verbal agreement to settle their case, and they need an attorney to draft the document which reflects the terms of the settlement.
However, in most cases the attorney will charge a fee based on an hourly rate and the time spent on the case. There are a number of factors which can affect the amount of time required for a case, including: the number of disputed claims, the complexity of the issues, whether expert testimony will be needed, whether the other party is motivated to reach a settlement or is angry and trying to make things difficult, and the attitude of the other attorney. At the beginning of a case, it is impossible to know how much time will be required. The attorney could give the client an estimate, but it would only be a guess. As the case proceeds, the attorney may be able to give a more accurate estimate for the cost of particular aspects of the case. For example, if the attorney and client are considering taking a deposition of the opposing party or a witness, the attorney should be able to estimate the cost of preparing for and taking the deposition, or at least give a reasonable range of the estimated cost. Just remember that estimates are not guarantees. Unexpected events can increase or reduce the actual cost.
.
DISCLAIMER: THE FOREGOING IS ONLY A PARTIAL SUMMARY OF INFORMATION WHICH IS RESPONSIVE TO THESE QUESTIONS. IT IS NOT INTENDED AS LEGAL ADVICE.