Getting a divorce is not an easy decision to make. However, sometimes it is the best option for everyone involved. If you have decided to end your marriage, the first thing you should do is learn about the process, including North Carolina’s requirements for divorce, alimony decisions, and child custody.
Requirements of Divorce
In order to get a divorce in North Carolina, you must meet the state’s residency requirement. According to the law, one spouse must have been living in North Carolina for at least six months prior to filing for divorce.
North Carolina is a “no-fault” state, meaning there is no need to prove either spouse is to blame for the divorce. The state does, however, list grounds for divorce. These grounds include (a) separation for one year or (b) incurable insanity of one spouse and living separate and apart for three consecutive years, including at the time when the petition is filed.
If divorcing on terms of legal separation, the couple must have lived separately and apart for one year with at least one spouse having the intention of staying separated. Couples do not have to file for a legal separation for this time to start.
Alimony in a Divorce
During a divorce, the court can decide whether alimony should be awarded to one spouse. Typically, the supporting spouse will be required to pay maintenance to the dependent spouse if the judge determines that it would be fair to do so.
The judge makes this decision by considering several factors, including:
If either spouse participated in any marital misconduct
The earnings of each spouse
The earning capacity of each spouse
The age, physical, mental, and emotional condition of each spouse
The amount and source of income for each spouse
The length of the marriage
Whether one spouse contributed to the education or increased earning potential of the other spouse
Whether child custody affects the spouse’s earning capacity and their expenses
Each spouse’s education level
The time it would reasonably take for the dependent spouse to obtain the training or education needed to find a job that meets their economic needs
The assets, debts, and liabilities of each spouse
The contributions of each spouse
The needs of each spouse
Any other economic factors the court considers relevant
Once the judge looks at these factors, they can decide whether to award alimony and for how long it will be paid.
Splitting Property in a Divorce
When two people get married, they build a life together. If the marriage doesn’t work out, they’ll have to deal with splitting up that life - which includes their home, assets, property, and debt.
Marital property and separate property are looked at when splitting assets under North Carolina law. Marital property is all real and personal property acquired by either spouse during the course of the marriage. Separate property is all real and personal property acquired by a spouse prior to marriage; it also includes any gifts or inheritances received by the spouse during marriage. Only marital property is split in a divorce.
In terms of property division, North Carolina is an equitable distribution state. This means the court divides marital property in a way that is equitable, or fair to each party. This is done by looking at the net value of marital property and the net value of divisible property. Divisible property is the value of marital property during the date of separation and the actual date of when it is separated. In some cases, this can mean an equal division of all marital property, but that is not always the case.
Certain factors are examined to determine what makes an equitable division of assets. Those factors can include:
The spouses’ health, age, income, assets, and liabilities
The length of the marriage
The liquidity of the marital property
How much each spouse contributed to the marital property or how much they dissipated marital property
Who has custody of the children
What the tax consequences will be on either party
Any other factors that can have an impact on what is fair for each spouse
Determining Child Custody
For parents that are getting a divorce, they will need to make decisions regarding the custody of their child. In North Carolina, there are a few options for custody rights of parents, which include sole custody, joint custody, and visitation.
In sole custody, also called exclusive custody, one parent has the right to make all of the important and major decisions in the child’s life. Parents with sole custody are referred to as the “custodial parent” with the other parent referred to as the “non-custodial parent.”
Joint custody, which is also called shared custody, is where both parents have the right to make important decisions regarding the child’s life together. This means the parents will have to communicate and work together to co-parent. The court often prefers this situation as it is usually in the best interest of the child to have a continuing relationship with both of their parents.
In joint custody situations, parents will also have to decide where the child will live. Joint physical custody does not always mean the child will spend exactly the same amount of time with each parent. Because it can be disruptive to a child’s schedule, the child may reside with one parent for a majority of the time, while the other parent has limited time with the child. Therefore, parents will have to work together to determine a time-sharing plan that is best for their child.
In most custody decisions, visitation will be a part of the court order. It gives the non-custodial parent the right to see their child. This includes a specific visitation schedule that the parents must follow that allows the child to spend time with their non-custodial parent. This schedule will depend on many factors like the distance between the non-custodial parent and the child, the child’s age, whether there are siblings involved, and many other factors specific to each case.
When making any custody or visitation schedule, parents should directly state which parent should have custody of the child at any given time. This includes holidays, school vacations, weekends, etc.
Custody and visitation decisions are often tricky for parents going through a divorce, as they can have a hard time making decisions that are in their child’s best interests. However, working with a Winston-Salem child custody lawyer can protect you and your family’s rights during this time.
Ready to Start the Process?
The divorce process can be intimidating and confusing, but Payne & Associates, PLLC is here to help. Our team of experienced divorce lawyers is ready to be your advocate and protect your rights through every step of the way. With us by your side, you can rest easy knowing your family will be protected.
If you have questions about getting divorced in North Carolina, call Payne & Associates, PLLC today at (336) 585-8454.