(3) Postseparation support
(4) Spousal support (Alimony)
(5) Divorce from bed and board
(6) Division of property (Equitable
Distribution)
(7) Absolute divorce
With
the exception of the absolute divorce, resolution of these issues can be achieved by agreement at any time.
To obtain the absolute divorce, a simple lawsuit and court hearing are necessary.
If the other issues cannot be resolved by agreement, each issue can be pursued in a separate lawsuit; however,
one or more of these actions are usually combined into one lawsuit.
NORTH
CAROLINA FAMILY LAW GLOSSARY
(1) Absolute Divorce:
An absolute divorce is what is commonly referred to as "divorce". An absolute divorce can only be obtained by a judgment of the court finding that all of the legal
requirements have been met. Remarriage is legally impossible until an
absolute divorce judgment has been entered.
(2) Alimony:
Alimony is financial support provided to a spouse or former spouse.
(3) Annulment:
An annulment is a remedy to set aside a marriage based upon certain limited legal deficiencies.
(4) Answer:
The pleading in which the defendant responds to the allegations made in the plaintiff's complaint initiating
the lawsuit.
(5) Arbitration:
The process by which parties agree to resolve their disputes outside of court, using the services of an
experienced third party arbitrator who is authorized by the parties to make decisions about the resolution of the
issues. Arbitration is governed exclusively by the parties' agreement to
arbitrate and the arbitrator's decision is usually binding upon the parties.
(6) Child Support Guidelines: In child
support cases in which the combined gross incomes of the parents do not exceed $180,000 per year, a court is likely to
refer to a table of child support numbers called the North Carolina Child Support Guidelines.
Although the court may deviate from these guideline amounts, they are presumptive and heavily relied upon by
the court in arriving at an appropriate child support award.
(7) Cohabitation: The act of two adults
dwelling together continuously and habitually in a private heterosexual relationship, even if this relationship is not
solemnized by marriage, or a private homosexual relationship. Cohabitation
is evidenced by the voluntary mutual assumption of those marital rights, duties and obligations which are usually
manifested by married people, and which include but are not necessarily dependent upon, sexual relations. Cohabitation
may be relevant to the issue of alimony entitlement.
(8) Complaint:
The pleading filed by the plaintiff initiating a lawsuit. It is a request for relief from the court, and sets
out the issues that the plaintiff wants the court to resolve.
(9) Consent Order: An agreement of the
parties that is memorialized as a court order bearing the signature of a judge. Attorneys
for the parties will determine the best instrument or instruments for recording the settlement terms.
Some agreements are memorialized with consent orders and some with separation agreement and property settlement
contracts and some with both.
(10) Counterclaim:
The pleading in which the defendant requests relief against the plaintiff.
It is essentially the defendant's complaint against the plaintiff in the same lawsuit brought by the plaintiff.
(11) Dependent Spouse:
The spouse who, for the purposes of postseparation support or alimony, is determined to either be actually
substantially dependent on the other spouse for financial support or substantially in need of financial support to
maintain a certain pre-separation lifestyle.
(12) Divisible Property: Property that must be divided pursuant to an equitable distribution claim and that is the product of
post-separation changes to marital property. Divisible property includes
passive increases and decreases in the value of marital property, such as interest and dividends.
It also includes any property received after the date of separation which a party had a right to before the
separation and which was acquired as the result of efforts of either or both parties during the marriage.
Increases in marital debts related to financing charges and interest accrued since the date of separation are
divisible property.
(13) Divorce from Bed and Board:
A court-ordered separation.
(14) Equitable Distribution: The legal rules and procedures under North Carolina law for classifying, valuing and dividing marital
property and debts.
(15) 50-B:
The chapter of the North Carolina General Statutes that provides for domestic
violence relief. A50-B@ is a shorthand reference to its location in the
Statutes. This chapter provides expedited relief to protect spouses,
children and other people in personal relationships who have experienced violence or are facing the prospect of
violence.
(16) Joint Custody:
This term may refer to either joint legal custody or joint physical custody, or to both.
There is no precise statutory definition of joint custody, so parties and the court must clarify what is
intended. Joint legal custody involves a common joint decision-making
arrangement whereby the parents are required to consult with each other on major issues involving the children. "Joint
physical custody" is defined in the North Carolina Child Support Guidelines as a residential schedule for the children
providing that each parent has the children residing with him and her for more than 122 nights (one-third) per year.
(17) Judgment:
A final written decision of the court regarding the litigated issues.
(18) Jurisdiction:
The authority vested in the court to hear an action. If the court does not have jurisdiction, the action cannot
proceed. A court must have jurisdiction over both the subject matter of the complaint and over the parties
themselves.
(19) Litigation:
A court action and the use of the court system to determine the outcome of contested issues.
(20) Marital Property: As defined by the North Carolina Equitable Distribution statute, property acquired during the marriage
through the efforts of one or both spouses between the date of marriage to the date of separation excluding gifts and
inheritances received by one party from someone other than the spouse.
(21) Marital Misconduct: Behavior during the marriage that may later influence a court's decision regarding postseparation
support, alimony and divorce from bed and board. Marital misconduct
includes physical or financial abandonment, turning the other spouse out of the marital residence,
indignities, excessive drinking or drug use, waste of money, adultery, and cruel or barbarous treatment.
(22) Mediation:
The process by which parties attempt to resolve a dispute outside of the court system, through a
negotiation-styled settlement conference with the assistance of a third-party settlement facilitator. Unlike an arbitrator or a judge, the mediator has no authority and if the parties fail to reach a
settlement, the parties may proceed to trial.
(23) Order:
A written interim directive of the court. An order is similar to a
judgment except that, unlike a judgment, an order does not finally dispose of the entire case.
(24) Postseparation Support: Spousal support paid either until a specific date set forth in a court order or until an order is
entered either awarding or denying alimony, whichever occurs first.
(25) QDRO:
An acronym for "Qualified Domestic Relations Order." This is an
order required by the Internal Revenue Service when dividing assets in certain types of retirement plans to avoid
adverse tax consequences.
(26) Separate Property: As defined by the North Carolina Equitable Distribution statute, property that belongs to one party
and is not subject to division by the court. Generally, this is property
that a party either owned prior to marriage, acquired after the date of separation or acquired as a gift or
inheritance from a third party at any time. Debts are classified as
separate if they were incurred prior to the marriage, after the date of separation or at anytime for a non-marital
purpose.
(27) Separation:
A physical residential relocation of one spouse.
(28) Service:
The delivery to the opposing party of a pleading or some other legal document related to the lawsuit.
This is a necessary process if the document is to have any legal significance.
(29) Separation Agreement and Property
Settlement: A written contract memorializing terms to which the
parties have agreed. A case may be resolved with one or more such
contracts. Unless the contract specifically provides that it is to be incorporated into a court order or
judgment, the contract will not be reviewed or filed with the court.
(30) Summons:
A document notifying a party of a court action and requiring that a party respond within a certain time frame.
It is issued by the clerk of court and usually is served by the sheriff or by certified mail to the individual
named on the summons. It is typically served with the complaint.
(31) Supporting Spouse: The spouse upon whom the other spouse is actually substantially dependent for financial maintenance
and support or from whom such spouse is substantially in need of financial maintenance and support.
(32) Venue:
The appropriate judicial district within the state of North Carolina for the lawsuit to be filed.
LITIGATION
Pleadings
and Service
The
first step in a lawsuit is the preparation and filing of a complaint. The
complaint is the court document in which the plaintiff tells the defendant why the lawsuit is being brought.
After
the complaint is filed, the defendant must be served with a copy of the complaint.
If the defendant has an attorney, the plaintiff's attorney may elect to offer to allow the defendant
to accept service. If the defendant will not agree to accept service, the law provides the plaintiff with other
means to accomplish service even if the defendant cannot be located.
The
defendant has thirty days from the date of service of the complaint to serve an answer.
If the defendant requests an extension, it is common for that party to be granted an additional thirty days to
serve an answer.
The
defendant may raise new issues by way of a counterclaim that is a part of the same pleading containing the answer.
If the defendant files a counterclaim, the plaintiff must serve a reply within thirty days (or sixty days if an
additional thirty day extension is granted).
A
case will be contested and a trial necessary unless both parties agree on all aspects of custody, support, property
division, payment of debts, attorney fees and other expenses of litigation. Even
after the complaint is filed, some or all of the case may be resolved by agreement.
A lawsuit is not always necessary. Most cases are resolved by
agreement either before or after a lawsuit is filed.
INTERIM
RELIEF
If
a party becomes abusive, or refuses to provide reasonable support or to provide relevant information concerning
income, assets and liabilities, a judge will hear evidence and determine whether some type of interim relief is
appropriate. It may be possible for a party to obtain an interim
allocation of the marital property if the other party has exclusive control of a substantial portion of marital
property. Depending on the nature of the case, the court may require both parties to file sworn financial
statements of earnings, expenses, assets and liabilities to assist in the compilation of critical information from
which the judge will reach a decision.
CHILD
CUSTODY AND SUPPORT
Child
Custody
The
magic words in North Carolina in child custody cases are "best interest of the child." After hearing evidence, a judge (not a jury) will decide how the parents, individually or jointly
will make major decisions affecting the children's lives and will establish an appropriate residential schedule for
the children. "Joint custody" is the term used to describe a joint
decision-making arrangement whereby both parents make major decisions for the children collaboratively.
Typically, one parent will be designated as having primary physical custody with the other parent having
secondary physical custody. A typical residential schedule for a parent
having secondary physical custody provides that he or she will have the children on alternate weekends, one-half of
the school holidays, and several weeks in the summer. It is not uncommon
for the secondary physical custody spouse to receive some mid-week visitation as well.
There is no presumptive residential schedule, however, and courts welcome mutually agreeable residential
arrangements.
If
a custody action is filed, the parties may be required to participate in mediation with a trained professional
mediator before the case is placed on a trial docket. The mediator, while
having no authority to impose a custody arrangement, will attempt to facilitate an agreement between the parties.
If an agreement is reached in mediation, it will be reduced to writing and entered by the court as an order
after the parties are given an opportunity to review the written agreement with their respective attorneys.
Child
Support
In
almost every case, one parent will be ordered to provide monthly child support payments to the other parent.
The court will probably calculate child support using the North Carolina Child Support Guidelines if the
combined pretax annual incomes of both parents total $180,000 or less. Although
the parents must file financial affidavits of expenses for themselves and for the children, the guidelines are based
on the gross incomes of the parties and the number of nights that the children spend with each parent.
A judge is permitted to deviate from the guideline amounts, but only if extraordinary circumstances warrant
such a deviation. Judges without juries hear child support cases.
It
should be noted that any child support obligation continues until the child reaches the age of 18 unless the child is
legally emancipated. Emancipation is rare legal status that must be
obtained by a minor through a specific court procedure resulting in a decree of emancipation.
If the child is attending primary or secondary school when he or she reaches age 18, the court will order
support payments to continue until graduation unless the child otherwise ceases to attend school on a regular basis,
or reaches age 20, whichever occurs first. A parent may agree to pay
child support beyond these time periods but, absent such an agreement between the parents, the court does not have the
authority to require a parent to pay for a child's college education. A
court also does not have the authority to require a parent to maintain life insurance for the benefit of a child.
Change
of Circumstances
Both
child custody and child support are issues that can be raised for the first time or modified at any time prior to a
child reaching the age limits described in the preceding paragraph. Either
parent can petition the court to change its prior order of custody or support based on a showing that circumstances
affecting the welfare of the child have changed. Small changes of
circumstances will not warrant such a modification.
Tax
Consequences
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.
POSTSEPARATION
SUPPORT
Postseparation
support can be thought of as temporary alimony. The emphasis of
postseparation support is economic need rather than marital fault. If a
dependent spouse can show economic need, a court has the authority to order some amount of postseparation support
either for a specific period of time or until an alimony determination is made. Postseparation
support is designed to provide either short-term spousal support with no alimony or interim spousal support until a
full alimony trial can be conducted.
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*Treasury
Department Circular 230 Disclosure: To ensure compliance with
requirements imposed by the Treasury Department, we inform you that any U.S.
federal tax advice contained in this communication is not intended or
written to be used, and cannot be used, for the purpose of (i) avoiding
penalties under the Internal Revenue Code or (ii) promoting, marketing or
recommending to another party any transaction or matter addressed herein.
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