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Helpful Information - Divorce Library

Absolute Divorce

In North Carolina, "absolute divorce" signifies nothing more than the termination of the marriage bond that was created by your wedding ceremony and marriage certificate. An absolute divorce can be obtained in North Carolina, by either party, once you and your spouse have lived separate and apart for at least twelve consecutive months. During those twelve months, you cannot have resumed your marital relationship. You don't need any written document to show you separated on a given date; you merely need to remember the date on which you did actually separate. You also need to be certain that at least one of you, at the time of the separation, intended for the separation to be permanent.

Some people want to get divorced as soon as possible, for symbolic or personal reasons. One symbolic value served by initiating a divorce is to show your spouse (especially if the spouse left you) that you are in control of your life, and you are taking steps toward greater independence. One personal ground for going forward with the divorce is to become eligible for remarriage. If, on the other hand, neither husband nor wife wants to go through the formal steps of obtaining an absolute divorce, there is no requirement that either party does so. This is true no matter whether the parties have been separated just over a year or for many years. One potential disadvantage to getting a divorce is that a spouse will no longer be continued indefinitely as a dependent on an employed spouse's group health insurance policy. Under present federal law, the continued coverage is only guaranteed for another thirty-six months at most following divorce.

North Carolina is a "no-fault" divorce jurisdiction, so neither party has to prove marital fault in order to obtain the divorce based on a one-year separation. As long as you have been separated at least a year and your paperwork is correctly processed through the judicial system, you can get your divorce. And you get the divorce whether or not you and your spouse have resolved any of the other issues arising from your separation, such as custody, spousal and child support, or distribution of property. You can also get the divorce whether or not your spouse wants to be divorced, provided that you have been separated for one continuous year and the paperwork has been correctly processed. Although North Carolina also has an alternative, three-year separation period for divorces based on one spouse's incurable insanity, almost all modern divorces granted in this state involve couples who separated for reasons other than one spouse's insanity.

Legal Separation

Many people wonder how the process of legal separation works in North Carolina.

Separation in North Carolina occurs on the date that a husband and wife move into separate residences with the intent to continue living apart from one another. Often, just prior to or during separation, people consult with attorneys about the separation process and they frequently hire attorneys to draft their Separation Agreement and Property Settlement papers. Within these separation agreements people often outline how their property will be divided, how much, if any alimony will be paid, how child custody will be arranged, and what amount of child support will be paid. A separation agreement can contain any one or all of the issues. The only issue pertaining to the end of a marriage that cannot be contained in a separation agreement is the divorce itself. The divorce can be obtained after one year and one day of separation in North Carolina.

Separation agreements are papers, which once signed by both parties involved, are binding as contracts. It is always in your best interests to meet with an attorney to discuss your rights and to make sure that you understand the separation papers before signing them.

Settlement: the most attractive option

North Carolina is fairly unique in allowing parties to keep support, property and custody issues from ever coming into court. In other states, these issues are generally submitted, at a minimum, for court approval at the time of divorce. As already mentioned, except for the absolute divorce which must be done in this state by a judge, all of the remaining four issues can be settled in North Carolina between husband and wife privately. If any of these issues is not settled by private agreement, such issues could be decided by a judge publicly if either spouse initiates and proceeds with litigation.

The vast majority of married partners in North Carolina opt for private settlement regarding custody, support and property division, given that most people can resolve their differences without the intervention of a judge. You should keep this fact in mind, because statistics nationwide predict that more than ninety percent of all couples will negotiate a settlement when they break up their marriage. Such a settlement will usually be embodied in a document, or contract, known in the North Carolina of the 1990s as a "Separation Agreement and Property Settlement." From the sample agreement, you will notice that these contracts usually follow a certain format: an introduction to the parties, some recitals about why the contract is being entered into, separate articles devoted to various topics such as property division, custody and so forth. This is not the only format that can be used, but it is a commonly used format.

In a minority of cases in which litigation had begun but the parties resolved the issues through settlement prior to having a trial, the settlement might also be embodied in a court document known as a "Consent Order." A consent order is simply the agreement of the parties, signed by both the parties (and sometimes their counsel) and a judge. Consent orders are different from regular court orders, in that a consent order would reflect the terms that you and your spouse work out between you whereas a regular court order would reflect a judge's rulings on all the issues that have been tried in his or her court.

You might also agree, even though no one had previously initiated litigation, to put all or part of your settlement into a consent order because of some perceived advantage of a court order over a contract in your particular case. For example, a court order -- unlike a contract -- is enforceable through the court's contempt powers. There is also a higher standard imposed in North Carolina for modifying custody and child support orders than the standard used for obtaining an initial judicial declaration as to custody and child support. The required showing to modify an existing custody or support order is one of "changed circumstances." In general, showing changed circumstances can be a difficult burden to meet.

Why settlement is preferable

Settlement is preferable in almost every case for any number of reasons. In almost all cases, resolution through settlement is less costly, less prolonged and less emotionally draining than litigation. The emotional strain of court proceedings is felt, moreover, by each spouse (regardless of who initiated the litigation) and also by the children, by other family members, and by friends and work associates who interact with the litigating spouses. Divorce -- even without litigation -- is already a major emotional stress on any family. The changes in family living arrangements alone causes temporary adjustment problems for the most sturdy of individuals. Added to such changes is all the uncertainty involved in allocating family financial resources that once went to one intact family unit and must now stretch to meet the needs of two households.

It is, then, little wonder that many families feel crushed by the extra emotional wear and tear of having to deal with court papers, including the burdensome discovery process of sharing written documents and answering written or oral questions, the selection and interviews of potential witnesses, and all the anxiety of formal court proceedings. Litigation is enough of a strain when it doesn't feel like the whole web of one's life is falling apart all at once. When one's concept of who one is and what the future will hold is being altered by separation and divorce, sometimes radically altered, then litigation is almost more than someone can bear.

Another disadvantage to litigation is that the judge, and not either of the contestants, dictates the result. Once your case is litigated, you lose control over the process even when you think you (and your attorney) may be influencing the judge. The outcome of litigation is, moreover, never a real victory for either side. Each side loses from having had to go through adversary proceedings. It's not only parents who suffer from courtroom proceedings. The children will be traumatized as well, whether or not they ever step foot in the courthouse.

Just as important as minimizing emotional and financial devastation at a time of major personal crisis, settlement can be custom-tailored to a family's interests and needs in a way that may not occur in the bureaucratic judicial system. That system cannot know your personal priorities and your family's special customs the same way you and your spouse know those priorities and customs. The judicial system is, on the whole, limited in fashioning remedies. The system will not provide the kind of creative solutions that you and your spouse might create on your own, provided you both have the stamina necessary for negotiation and the capacity to be flexible. For all these reasons, you want to go to court only as a last resort, when nothing else looks like it will work.

Regardless of whether spouses can settle or they are forced to litigate, the independent nature of custody, support and property issues in North Carolina can drag out the ultimate resolution of all issues arising from separation. For example, custody can and might be resolved in North Carolina -- by private agreement or in court -- long before any other topics have been dealt with; or, property might be divided long before there are any agreements with respect to custody or support. You will certainly want to consider during the negotiation process whether it makes sense to try to deal with all issues simultaneously, rather than one at a time as North Carolina law allows. In terms of peace of mind, closure and expense, it usually makes the most sense to settle everything at once and as expeditiously as feasible under your individual circumstances.

It is, of course, also often tactically advantageous to settle as many issues as possible all at once. A prime advantage of such a settlement technique is that either husband or wife has the opportunity to "trade" or compromise on items in one subject area (such as custody) for something that spouse wants more in another area (such as property). If, by comparison, all five topics are dealt with at separate times, as North Carolina law permits, "trading" across subject areas is going to be much more limited.

Negotiating successfully

Following just one piece of advice about negotiating may carry you to a satisfactory resolution. That advice is to focus most of your attention on the single issue that is most important to you (rather than allowing yourself to get sidetracked on issues that have only passing or minor emotional significance) and then to be prepared to make concessions on the matter that counts most to your spouse. If however you can see, ahead of time, that your most important issue is also your spouse's most important issue, and the two of you are in opposite camps over that issue, negotiating may be a waste of time. If, on the other hand, you have figured out what your spouse most wants, and you can find a way to get to that point, that will provide you some leverage in the negotiations in getting what you most want.

Focusing on your single most important priority and your spouse's highest priority are extremely important tactics that are all too often overlooked in negotiations. Let's say you are the mother of two teenagers, both of whom hope and plan to go to college. You and your husband quickly drew up and signed a separation agreement and property settlement addressing only property and custody. Both children will reside with you. All the marital property, including the IRAs in your husband's name, have been equally divided between you and your husband in the written agreement.

You entered into the written agreement, drafted without a lawyer, at a time that both of you foresaw you would have to ask a judge to decide the issue of child support because the two of you had sharp disagreements over that. You drafted the agreement yourselves, covering only custody and property, because you and your husband perceived both of those areas to be simple enough to do on your own. There was simply no contest over custody. You yourself felt especially secure about the property issues, too, because you have always managed the family finances. You were certain that you were not overlooking any marital assets when you tallied everything up. You also believed that all assets had been fairly valued and divided. You and your husband researched sample language for your written agreement in several legal texts; both of you understood your contract would be a binding agreement; and you are both hopeful that there are no major omissions or mistakes in the drafting you did. Thus, you are not really concerned about the future implementation of the custody and property agreement that the two of you have finalized.

You left child support out of your settlement discussions and the written agreement, however, based on your perception of your children's financial needs and based on a concern that you might not have been able to draft an "air-tight" document concerning support. You believed the children would be entitled to receive monthly support above the Child Support Guidelines, which your husband would not agree to. You were both prepared, in the heat of angry conversations, to litigate the issue. You and your husband never discussed the children's future college expenses, as the issue of child support was something the two of you did not discuss in any detail once it became clear that you were not going to be able to agree.
Now you have realized that getting your husband to agree to contribute to the children's college education is much more important to you than having half of his IRAs; and contribution to college education is also now far more important to you than asking a judge to award monthly child support above the Guideline amount, which the judge might refuse to do anyway. You have also now been informed, correctly, that a North Carolina judge lacks the authority to order a parent to pay for college expenses unless the judge is merely enforcing a prior contract entered into between husband and wife. You did not know that earlier, just as you did not recognize earlier that college was a big deal for you.

At this point, you will be able, if at all, to get your husband to agree to contribute to college costs only by re-opening the negotiations that had previously resulted in a written agreement. Your husband may be interested enough in retaining all his IRAs or in getting some other item of property that he would consent to sign a new agreement that obligates him to contribute to college. On the other hand, he has now gotten used to the idea that he has divided the IRAs with you, according to what both of you deemed to be fair, and that he will just let a judge decide about monthly child support. In other words, your husband may no longer be interested in further negotiations with you.

The opportunity you once had for a more comprehensive settlement may be lost. Worse, you may be left with a bargain not as good as the one you might have struck with your husband initially. After enduring the stress (and possible expense, if lawyers were involved) of strenuous negotiations, parties may understandably be very reluctant to return to the bargaining table.
Therefore, you want to know -- from the start -- exactly where you want to go with the negotiations. You also want to become more informed about some of the skills needed for successful negotiations. You can pick up tips about negotiating from a number of excellent books. An good place to start is with Getting to Yes: Negotiating Agreements Without Giving In by Fisher and Ury. The chapters in that book summarize some important points to keep in mind at all times: Don't bargain over positions. Separate the people from the problem. Focus on interests, not positions. Invent options for mutual gain. Insist on using objective criteria. Know what to do if the other side is more powerful, or won't play, or is using dirty tricks.

Negotiating in the face of the breakup of a marriage is a daunting task. The conflict with your spouse can get destructive; negotiations may get seriously out of control; one party may commit too early to something the party can't or won't do; and separation distress can be greatly augmented if settlement discussions aren't mutual efforts to work out practical solutions that make sense for both partners and the children. Many couples cannot go it alone, but need to rely on lawyers or other professionals to smooth the way.

It is, of course, also extremely difficult for each spouse not to become embroiled in the issues that led to marital dissolution, whether or not the spouses enlist outside help for the negotiations. Your very best preparation for negotiations is to get your emotions under control and to inform yourself, as fully as possible, about: (1) what you most need and want, (2) what your spouse most wants, (3) what the law says each of you is entitled to, and (4) what your family income and expenses are now and what your income and expenses will be post-separation. Don't try to negotiate without getting a handle on this information, whether you are negotiating on your own behalf or you are using someone to negotiate for you. Don't try to continue negotiations at a juncture at which one, or both, of you has lost objectivity.

Here are some tactics and attitudes to assume, if you do decide to try one-on-one negotiations with your spouse. Negotiate in a neutral place where you feel safe, at a pre-planned time. Break off negotiations immediately if things heat up unconstructively. A good starting point for settlement discussions is for you and your spouse to recognize, and enumerate, all the areas on which you agree.

Then find out more about all the things about which you can't agree. Try to hear what your spouse has to say, without arguing the points. Try to get your spouse to hear what you have to say, without raising your voice. Be careful not to fence yourself in by indicating some dollar amount that you are offering, or that you are willing to accept. If you offer a dollar amount that you later realize was too high, your spouse's expectations have been set at the higher amount. If you said you'd take an amount that you subsequently discover is too little to meet your expenses, you will have a devil of a time convincing your spouse to increase the amount. Think about the items of property you are receiving when you and your spouse make guesses about their value; the lower the values on the items you will be receiving, and the higher the value of your spouse's items, the more items you will get in a 50% division.

Address all the issues, not just some of the issues; look at the facts, not what you or your spouse imagine to be the facts; see if the two of you can create solutions rather than new areas for conflict. At impasses, talk together about what the likely outcome would be if you have to go to court. In order to make these predictions, you both need to know the basic materials presented in this book. You also need to look for points on which to leverage your requests. Such points include secrets that your spouse doesn't want to make public, or your spouse's sense of duty or your spouse's pride in being known to do the right thing.

Remember, statistics predict you will settle the issues that may seem to be impossible to settle. But if you can't settle under your own power, don't wear yourself out trying. Just move on to the next step -- get help from an attorney or another professional. If that person picks up the negotiations, the discussions may go on for some time. There may be telephone calls, letters, demands/counteroffers, proposed draft agreements, face-to-face meetings, delay. Still, you will most probably settle eventually.

Division of Property

Property that is acquired during marriage by one or both spouses, and owned on the date of separation, may be defined as marital property subject to the equitable distribution law of North Carolina. Excluded, however, from the definition of marital property are gifts and inheritances, received by one spouse only, from third parties, whether such property is acquired during the marriage or not. Such gifts and inheritances are that spouse's separate property and do not get divided with the other spouse. Gifts from one spouse to the other spouse during the marriage, on the other hand, are presumed to be gifts to the marital unit. Property owned by either party prior to marriage is that party's separate property, provided that it is not gifted to the marital unit.

Equitable distribution law presumes, further, that an equal (50/50) division of the marital property will be equitable. Most judges in this state favor awarding each party fifty percent of the marital property, unless certain factors make a good case for an unequal distribution. Unequal distributions come in all percentages, from 51.2% / 48.8 % to 95% / 5%, for example. The standard court case, however, results in an even 50/50 split of the property. The typical negotiated settlement on marital property also tends to be quite close to a 50/50 division, unless the spouses can agree to a different allocation. In a negotiated settlement, any ratio is permitted. The real question is what percentages the parties can agree to.

"Property" includes both assets and debts. All assets and debts acquired during the marriage, and owned on the date of separation, are valued as of the date of separation in North Carolina for purposes of calculating the net value of the marital estate. If the net value of the marital property is $100,000, applying the 50/50 presumption leads to each spouse's receiving property worth a total of $50,000. If, on the other hand, the marital property has a negative net value of, say, minus $20,000 because of large debts that outweigh the spouses' positive assets, then applying the presumption leads to each spouse's receiving property worth a total of negative $10,000.

There are a number of so-called "equitable distribution factors" in our equitable distribution statute that can justify a judge's unequal (non-50/50) distribution of marital property. Such factors include one spouse's health, income-earning potential, need to reside in the marital home with the children of the marriage, a spouse's business or unvested pension interests, and similar economic factors. Fault is not relevant in an equitable distribution proceeding, except to the extent that marital misconduct has had an economic impact on the marital estate. Where the equitable distribution factors make it equitable for one spouse to receive more (or less) than 50% of the net marital estate, a court's award would be unequal, that is other than 50/50. Because, however, the vast majority of cases lack facts that weigh in favor of an unequal distribution, many litigated cases and most equitable distribution cases that settle result in each partner's receiving half of the property.

Child Custody

Child custody will be settled between you and your spouse by written agreement or custody will be set out in a court order. For as long as you don't have some controlling written document, either you or your spouse could try to change the existing custodial arrangement at any time simply by moving a child's residence. Many couples do not understand that without some written agreement or court order, a child is vulnerable to unpredictable disruption in living arrangements and discontinuity.

Such possible disruption even means that either parent would be completely free to move from an existing county of residence or to leave the State of North Carolina with the children, unless the sole purpose for leaving was to evade the jurisdiction of our courts. Without a written agreement or court order dictating otherwise, the general rule in North Carolina is that each parent has equal rights to the physical possession of a child of the marriage. Hence, relocating the children -- in the absence of a written document prohibiting such a move -- is not abduction, unless the motivation for moving with the children is to evade the jurisdiction of the North Carolina courts.

In more than ninety percent of all divorces, child custody never becomes a real issue. One parent (still usually the mother) has been the primary caregiver throughout the child's life; and the parties agree that this caregiver should continue to have the child most of the time. The written document governing custody will usually specify whether this parent, who is getting primary physical custody, will have "joint" or "sole" custody.

Even where there has been an amicable settlement on the issue of a child's principal residence, parents can get hung up on terminology. One parent insists she wants "sole custody" and the other parent fights to include the phrase "joint custody" in the written agreement. This fight over language is often less important legally than the spouses think. These terms typically refer to a parent's rights to make decisions regarding the child, with "sole custody" indicating that the parent with possession has most or all of the decision making authority and with "joint custody" tending to indicate that each parent will have some decision making input. In actuality, however, the terms "joint" and "sole" mean whatever the written custody document says they mean. You need to keep this in mind as you draft your agreement; you also need to keep this in mind when you start to find yourself in a fight over phraseology. The terms "sole custody" and "joint custody" have no special meaning in North Carolina except the meaning you give them in an agreement or the meaning a judge gives these terms in a court order. In other words, it all depends on what else the document says, if anything, about decision making.

If the issue of custody is put before a judge, the judge will render a custody decision based on the "best interests" of the child. There are many, many factors considered by judges in determining the best interests of a child, most of which are straightforward and self-evident. Such factors include the mental and physical well-being (or lack of it) of each parent, each parent's caretaking capacities, the role of each parent thus far in taking care of the child, the age of the child, the child's relationship to each parent, the time that each parent has available to spend with the child, the environment that the parent can create for the child, the presence of siblings in the family and the siblings' relationship to each parent and to each other, prior bad acts of either parent (as, for instance, abuse and neglect), parental drug or alcohol problems, religious factors, the willingness of each parent to keep the other parent involved in the child's life and to facilitate the other parent's access to the child, and each parent's adult relationships including non-marital sexual relations.

The factors might also include a child's preferences about where he or she wishes to live. In North Carolina, a judge is never required to defer to the parental preference of a minor child. In practice, as the child gets older and especially when the child is a mid-teenager, the judge may place more weight on the child's own desires. Preference will not be the judge's determining factor. The determining factor will remain the best interests of the child.

In most residential arrangements for children of divorce, one parent has more custodial time with the children and the other parent has less custodial time, also known as "visitation". Visitation refers, in other words, to the custodial time assigned to the parent with whom a child does not primarily reside. In litigated custody cases in North Carolina, the secondary parent is most frequently awarded alternate weekends, sometimes one overnight during the week or another evening for supper, half of all major holidays, and special days such as Mother's or Father's Day and birthdays.

It is quite rare for North Carolina judges to order no visitation for the secondary parent. In cases where one parent proves the child may be in some danger from the other parent, however, the judge might provide that all visitation will be supervised by either a relative or an unrelated third party such as a social worker in a protected setting. The supervision may decrease over time, depending on how much the supervised parent's behavior and attitude improves.

Over the past few decades, there has been a judicial trend toward increasing the number and length of visitation periods for the secondary parent, although different judges in North Carolina have different philosophies regarding this issue. A few judges believe, for instance, that very young children should remain in one setting most of the time. These judges would, accordingly, award less visitation to the non-custodial parent, at least until the child is older. Most judges however, do not appear to take the child's age into account when deciding the length and frequency of visitation periods.

If you have to litigate custody, your most important allies in court will be all the people who have observed you interact with your child. These potential witnesses include relatives, teachers, doctors, daycare workers, neighbors and friends. Such witness testimony will be most helpful where the witness has seen your recent activities and interactions with your child, where the witness has made such observations over longer periods of time, and where you and the witness have also talked about your child.

In order to bolster your custody case, then, you want to be as "visible" a parent as you can be. You will do that by fostering your own relationships with all the people who have meaningful contact with your child. These are the same people you might call as witnesses on your behalf at a custody trial. In addition, you may want to secure photographs or videotapes of the rooms of the place where your child would live with you, as well as photographs of its outside spaces. Such photographs tell the judge more about how your child would be served by living with you. Photographs and tapes also serve to sharpen a judge's personal experience of you and your child. Such engagement might lead the judge to take a greater interest in your side of the custody case.

Some couples are advised, and rightly so, to consider retaining a mental health professional to evaluate the child's status and developmental needs, as well as the child's relationships with each parent. You and your spouse may learn a great deal about yourselves and your child during this evaluation process. Having learned new things about yourself, your spouse and the child, you and your spouse may be able to consider following the recommendations of an impartial psychological evaluator rather than proceed on with litigation. The custody evaluator may be any competent mental health professional, including a psychiatrist, psychologist or social worker. In our experience, the training and ideological background of the evaluator matters less than the evaluator's understanding of children and family dynamics. Properly conducted, a custody evaluation may be conducive to settlement short of going on to trial.

In the usual case, the custody evaluator interviews the parents, both together and individually, one or more times. The evaluator also observes the child and the child's interactions with each parent; and the evaluator may interview other people who are significant in the child's life. It is not unusual for the professional to administer some standard psychological tests. It may also be helpful to the evaluator to visit the child's home or to visit the place you are proposing that the child live. In the interest of objectivity, the professional selected for the custody evaluation should not be a person who has previously treated any member of your family. We also recommend that each party pay one-half the costs of the custody evaluation, to avoid the appearance that the professional is a "hired gun" for the parent who pays the fee.

Occasionally one parent, or both parents independently, will hire their own expert mental health professional to advocate that parent's custody position in court. Judges tend, however, to give less weight to experts who have been retained for the express purpose of being partial to one or the other side. In fact, some judges will disregard psychological testimony, which the judge perceives to be biased, in favor of hearing what other witnesses have to say about what they have observed in the interactions between parents and their children. The decision to employ an expert should best be made under advice from an attorney, as such a decision could lead to considerable expense without enhancing the outcome in your favor.

Child Support

Child support may also be settled between you and your spouse by written agreement or it may be resolved by court order. Unless you have some such document, you will not be able to count on the facts that predetermined child support payments will be made by the non-custodial parent or, if they are not made, that parent's obligation to do so can be enforced by the court.

All states have adopted guidelines that set automatic rates of child support according to certain variable criteria related to family income and number of children. In North Carolina, the Child Support Guidelines are based on the combined gross incomes of the father and mother of the child. The current North Carolina Guidelines list child support amounts for families of up to $200,000 annual combined gross income, according to the number of children of the marriage. Adjustments are then figured in for ordinary additional costs such as work-related daycare expenses and health insurance premiums. However, other fixed expenses that are used in some other states for the calculation of child support -- such as rent or mortgage, automobile payments, and utilities -- are not expressly used in making the child support calculation in this state. Instead, such expenses are implicitly accounted for, as a general matter, in the North Carolina Guidelines amounts.

A judge in North Carolina is also permitted to deviate, upwards or downwards, from the guideline amount in cases where the guideline number is less, or more, than the child actually needs. Examples warranting deviation include extraordinary health care costs, special education fees and transportation expenses to facilitate long-distance visitation. In a family with combined gross income in excess of $200,000, the custodial parent is usually the parent who requests an upward deviation from the guidelines. Regardless of family income, the non-custodial parent (also known as the "obligor") is often the one requesting a downward deviation. Deviation is completely within a judge's discretion in North Carolina; it is neither mandatory nor automatic.

Child support is available under North Carolina law during a child's minority (until age 18). If a child is otherwise emancipated prior to age 18, child support would end at that earlier age under our current law. There are, however, also three situations in which child support can run past the age of majority. One such situation is that of a child who has not yet, as of age 18, graduated from high school. Provided the child is enrolled in secondary school, child support will continue until age 20 or graduation from school, whichever comes first. The second situation is a parent's written agreement to pay support past the age of the child's minority. If such a contract is valid and enforceable, the post-majority obligation spelled out in the contract can be imposed by the court called on to interpret the contract. The final exception to the rule that child support ends when the child is no longer a minor is made for a child who, post-minority, remains mentally or physically incapable of self-support, such as a child who needs long-term care. In this situation, the child support obligation under North Carolina law exists for as long as the child is incapable of self-support.

Where child support is agreed to in a separation agreement, or ordered by the court, and then not paid, there are a number of remedies to secure enforcement of the agreement or court order. If the child support is set up in a contractual agreement, the basic remedy is suit for breach of the contract, which would include a claim for the arrearages. If child support is payable under a court order, the order is enforceable through the contempt powers of the court.

Alimony

On October 1, 1995, the law of spousal support in North Carolina changed dramatically. These changes increased the number of spouses who are eligible to receive post-separation support and alimony in this state. The changes may, however, decrease the duration of spousal support payments in many cases. Shorter terms for alimony are most expected with younger, more employable dependent spouses. Only a dependent spouse is eligible to receive post-separation support and/or alimony in this state. The statutes of North Carolina define a dependent spouse as "a spouse, whether husband or wife, who is actually substantially dependent upon the other spouse for his or her maintenance and support or is substantially in need of maintenance and support from the other spouse." Without economic dependency, a spouse is not entitled to a judicial award of post-separation support or alimony in North Carolina.

"Post-separation support" is the new term in the North Carolina statutes for funds paid to a dependent spouse by the other spouse until the earlier of either the date specified in the order of post-separation support, or an order awarding or denying alimony. Spouses can also enter into a voluntary agreement regarding post-separation support with any terms and conditions they choose. This kind of support used to be known as "temporary alimony" (or "alimony pendente lite").

Support that is of potentially longer duration is now known as "alimony;" this kind of support used to be called "permanent alimony." Spouses can also enter into a voluntary agreement regarding the payment of alimony, again with any terms and conditions they choose. A dependent spouse can also waive or forego either post-separation support and/or alimony by agreement.

Under the old law, if the parties were unable on their own to settle the issue, permanent alimony submitted to a judge could only be decided on by the judge after the property of the marriage had been distributed. That is no longer the required chronology. However, if alimony is now awarded prior to a division of the marital property, a party may request that the alimony award be reconsidered once the property is divided. Both the amount and the duration of alimony can be reevaluated after the property is finally divided.

The tests for post-separation support and alimony are somewhat different under the new law in North Carolina. To be eligible for post-separation support, a dependent spouse must show that his or her resources are not adequate to meet his or her reasonable needs, and that the supporting spouse has the financial means to pay post-separation support. In deciding the inadequacy of the dependent spouse's resources and the supporting spouse's ability to pay, a court looks at the parties needs in light of their accustomed standard of living, their incomes, their income-earning abilities, debt service obligations of each party, and their necessary expenses. By contrast, the language of the alimony statute requires an award of alimony in cases where the court finds an alimony award to be equitable. There are a number of factors, discussed below, the court is to use in making this determination about the equitableness of an award of alimony.

Qualifying for Support. Both the old alimony law and the new law use financial dependency as a primary criterion in setting the amount and term (duration) for alimony. Economic dependency can, however, now be a sufficient condition for the receipt of alimony. Under the prior law, dependency was a necessary but not a sufficient condition for receiving alimony.

This is the largest difference between our old alimony statute and our new one. Under the old law, economic need was not enough to qualify a spouse for support. Under our prior alimony law, the dependent spouse also had to show that the other spouse (who is still called the "supporting spouse" under the new law) had committed some marital fault. Marital fault included actions such as abandonment, adultery, indignities, excessive use of alcohol or drugs, reckless spending, and failure to provide for a spouse's subsistence needs. These things continue to be marital fault under the new law, so long as the fault occurred during the marriage and before or on the date of separation; and a dependent spouse can still put on evidence of fault as one of the factors that a judge can consider in an alimony hearing. But a showing of fault is no longer a pre-condition for an award of post-separation support or alimony.

Amount of Support. Unlike child support in North Carolina, there are no recommended guidelines as to the appropriate amounts of post-separation support and alimony to be received by a dependent spouse. In essence, the test used by the court is two-fold. First, a judge will determine how much money the dependent spouse needs to meet his or her reasonable needs, consistent with the standard of living in the final years of the marriage. The judge makes this determination by measuring a spouse's reasonable monthly expenses against the amount of his or her available income and other financial resources. Second, the judge decides whether the supporting spouse has the financial ability to pay the amount of alimony that would be fair and just. These same standards are, of course, useful guides in settlement negotiations, where parties are trying to predict what would occur were the support case to be litigated.

Under the new law, in determining the amount and duration of alimony, the judge in fact examines anything and everything, above and in addition to the basic two-part test that relates to a party's alimony claim. In order to view the big picture of what is "equitable," the court is required to consider all relevant factors, including but not limited to the following:

The relative earnings and earning capacities of the spouses;
The ages and the physical, mental and emotional conditions of the spouses;
The duration of the marriage;
The standard of living of the spouses established during the marriage;
The relative needs of the spouses;
The contribution of a spouse as homemaker;
The relative education of the spouses and the time necessary to acquire sufficient education or training to enable the spouse seeking alimony to find employment to meet his or her reasonable economic needs;
The extent to which the earning power, expenses, or financial obligations of a spouse will be affected by reason of serving as the custodian of a minor child;
The amount and sources of earned and unearned income of both spouses, including, but not limited to, earnings, dividends, and benefits such as medical, retirement, insurance, social security, or others;
The marital misconduct of either of the spouses through the date of separation;
The contribution by one spouse to the education, training, or increased earning power of the other spouse;
The relative assets and liabilities of the spouses and the relative debt service requirements of the spouses, including legal obligations of support;
The property brought to the marriage by either spouse;
The federal, state, and local tax ramifications of the alimony award; and
Any other factor relating to the economic circumstances that the court finds to be just and proper.

So you can also see that fault plays a role under the new alimony statute in North Carolina. Because our case law interpreting the new statute will not develop for some years, no one can yet be certain how important fault will be in post-separation support and alimony hearings. Trial judges in North Carolina have, after all, until very recently been required to find a spouse is at fault before he or she can be required to pay support to the dependent spouse. Under the new law, fault such as abandonment by the other spouse continues to be defined as marital misconduct, so it may still be considered by a judge as one of the factors listed above. However, it would be only one factor of the many factors which the court is required to examine. In summary, even without misconduct by the supporting spouse, a dependent spouse in need of financial support can now theoretically receive an award of post-separation support and/or alimony in North Carolina. The only situation in which a dependent spouse will be absolutely barred from getting spousal support will be in an alimony (not a post-separation support) case in which the supporting spouse can prove the other spouse's uncondoned illicit sexual behavior, with no similar fault having occurred on the part of the supporting spouse. Conversely, if the supporting spouse does indeed commit marital misconduct, but the other factors listed above indicate that the dependent spouse should not receive alimony, then the judge may choose not to award any alimony to the dependent spouse. The decision whether to award support is a matter completely within the judge's discretion.

Term for Alimony.

Alimony under court order is payable as either a lump sum or in the form of periodic payments, for a specified or an indefinite term. Five possible termination conditions set the end date for an indefinite term, and that would be when:

the parties resume marital relations;
the recipient dies;
the payor dies;
the recipient remarries; or
the recipient cohabits with another adult of the same or opposite gender.

The fifth possibility for termination of alimony is that the award expires on its own terms after a fixed length of time. In settlement negotiations, the parties frequently agree on a fixed-term option, although if they can agree on different termination conditions that is of course also acceptable.