Family Law

What are the grounds for getting an absolute divorce in North Carolina?

ANSWER: The foremost and practically speaking only ground for an absolute divorce is a one-year separation, except in rare cases where there are allegations of incurable insanity. You and your spouse must have lived separate and apart for one year which means that you must have lived in separate residences during this one-year period. Living in separate bedrooms or not having sexual intercourse for the year does not meet the requirements of "living separate and apart".

How do I get a legal separation in North Carolina?

ANSWER: The North Carolina statutes do not provide for a legal separation. For purposes of obtaining a divorce, spouses must live separate and apart for one year, and the one-year period starts when one spouse actually leaves the residence and begins living somewhere else.

Do I have to have a Separation Agreement?

ANSWER: No, although there are several important reasons for having one, including to document the date of separation, to detail the distribution of your assets and liabilities, to establish spousal and child support, to establish custody and visitation, and to waive inheritance rights.

If I move out of the house, can I go back to the house whenever I want to if my name is still on the deed?

ANSWER: Under the Domestic Criminal Trespass statute, if one spouse moves out, he or she is no longer the legal occupant of the house and can be prevented from returning without the permission of the spouse who is still living in the house.

Is a Separation Agreement filed with the court or recorded in the Register of Deeds office?

ANSWER: No. A Separation Agreement is a legally enforceable contract between spouses. It is not filed with the court nor is it usually recorded in the Register of Deeds office. However, if either spouse is going to refinance the mortgage or purchase property in his or her own name during the separation period, you will need to record a Memorandum of Separation Agreement in the Register of Deeds office.

What do I do if my spouse refuses to pay child support?

ANSWER: If child support is set out in a Separation Agreement, you can file a lawsuit for breach of the contract and include a claim for the arrearage.  If child support is established in a court order, the order is enforceable through contempt proceedings.

Can my spouse avoid paying alimony or child support if he or she files bankruptcy?

ANSWER: No, alimony and child support obligations are not dischargeable in bankruptcy.

How often can child support be recalculated?

ANSWER: If child support is established in a Separation Agreement, you and your spouse can agree to recalculate child support by signing an Amendment to the Separation Agreement.  If one spouse does not agree to enter into an Amendment, a parent can file a lawsuit to have child support calculated based on the then-existing incomes, child care and insurance costs.  Once child support has been established in a court order, either party may file a motion to modify based on a "substantial change of circumstances."  if the last child support is more than three years old and the new amount is more than 15% different from the last court-ordered amount, that change constitutes the "substantial change of circumstances."

Will my spouse's adultery have an effect on the equitable distribution of our property?

ANSWER: No, the only fault relevant in equitable distribution is marital misconduct that has an economic impact on the marital estate.

If I sign a deed transferring the property to my spouse, does that take my name off the mortgage too?

ANSWER: No, the signing and filing of a deed transfers only title to the property to the other spouse.  To remove your name (and your potential liability) from a mortgage requires the other spouse to either assume or refinance the mortgage in his or her sole name.