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".
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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.
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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.
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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.
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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.
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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.
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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.
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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."
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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.
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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.
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