FAQ

Frequently Asked Questions About Family Law And Divorce

There are two types of divorce in North Carolina —- Absolute Divorce and Divorce from Bed and Board.

1. Absolute Divorce

In order to obtain an absolute divorce in North Carolina, there are two requirements that must first be met: First, there is a six (6)-month residency requirement in North Carolina prior to seeking the divorce that must be met. This simply means that you must have resided in North Carolina for six (6) months prior to seeking the divorce. Second, you and your spouse must be separated for a period of one (1) year, living separate and apart (in separate abodes). Essentially, this means that you must not occupy the same physical residence and that you must show by action that you and your spouse are no longer living together as husband and wife. After these requirements are met, you will be entitled to an absolute divorce.

Process for Obtaining an Absolute Divorce

A claim for absolute divorce is started by filing a Complaint for Absolute Divorce that is then sent to the opposing party along with a summons, advising that person that a suit has been filed against them. You will have sixty (60) days to serve the opposing party. If you are unable to serve your spouse within sixty (60) days, you will be required to issue another summons. Once your spouse has been served, he or she will then have thirty (30) days to answer your complaint and may get an additional thirty (30) day extension to answer your complaint. Typically, it will most likely take seven to eight weeks from the time the complaint is filed until you actually receive your judgment of divorce.

2. Divorce From Bed and Board

If you and your spouse are unable to voluntarily separate from each other, you may have to file an action known as a Divorce from Bed and Board, also referred to as a "legal separation." Oftentimes a party seeking a Divorce from Bed and Board will ask the Court to order one of the parties to leave the residence.

3. Grounds for Divorce From Bed and Board

According to N.C.G.S.§ 50-7, the court may grant divorces from bed and board on application of the party injured, made as by law provided, in the following cases if either party:
(1) Abandons his or her family.
(2) Maliciously turns the other out of doors.
(3) By cruel or barbarous treatment endangers the life of the other. In addition, the court may grant the victim of such treatment the remedies available under N.C.G.S. §50B-1.
(4) Offers such indignities to the person of the other as to render his or her condition intolerable and life burdensome.
(5) Becomes an excessive user of alcohol or drugs so as to render the condition of the other spouse intolerable and the life of that spouse burdensome.
(6) Commits adultery.

4. Annulment

A marriage in North Carolina may be annulled if said marriage is:

(1) Between any two persons nearer of kin than first cousins; or

(2) Between any two persons who are double first cousins; or

(3) Between a male person under sixteen (16) years of age and any female; or

(4) Between a female person under sixteen (16) years of age and any male; or

(5) Between persons either of whom has a husband or wife living at the time of such marriage; or

(6) Between persons either of whom is at the time physically impotent; or

(7) Between persons either of whom is at the time incapable of contracting from want of will or understanding; or

(8) A marriage contracted under a representation and belief that the female partner to the marriage is pregnant, followed by the separation of the parties within forty-five (45) days of the marriage which separation has been continuous for a period of one (1) year, shall be unless a child shall have been born to the parties within ten (10) lunar months of the date of separation

If an annulment is granted, the marriage is declared void from its inception or "void ab initio" and no rights of marriage will flow from an annulled marriage.

5. The Resumption of Cohabitation

Resumption of marital relations after a divorce from bed and board is granted nullifies the effect of the divorce. The standard holds resumption of marital relations "shall be defined as voluntary renewal of the husband and wife relationship, as shown by the totality of the circumstances. Isolated incidents of sexual intercourse between the parties shall not constitute resumption of marital relations."

6. Child Custody

In North Carolina, child custody is often settled by a voluntary agreement between the parents in the form of a parenting agreement, or some other private contract. There are only a small percentage of child custody disputes which are decided in the courtroom. Thereafter, the judge will consider a variety of factors, in determining who will serve as the custodial parent, and which parent in the noncustodial parent. Most importantly, the judge will base his or her decision on what is in the best interests of the child. The court must follow the North Carolina Child Support Guidelines unless there are factors requiring deviation from the guidelines.

7. Legal Custody

There are three different types of legal custody. A court can grant parents joint legal custody, sole legal custody or a combination of the two, which will grant one parent "final decision making authority."

(1) Joint legal custody gives each parent equal right to participate in making major decisions on behalf of the minor child.

(2) Sole legal custody gives one parent the sole authority to make major decisions on behalf of the minor child. A court may also grant one parent the right "to make final decisions" which means that each parent will have to discuss with the other all major decisions affecting the welfare of the minor child in an attempt to come up with a mutual decision.

(3) Combination is if the parties are unable to mutually agree, then the parent who has "final decision making authority" will make the final decision.

8. Physical Custody

There are generally three types of physical custody:

(1) Primary physical custody simply means that the minor children physically reside with one parent and visit with the other parent.

(2) Secondary physical custody is exercised by the nonprimary physical custody parent.

(3) Joint physical custody is a true sharing of time with the children whereby each party will have equal time with the children.

9. Custody Mediation Process

In North Carolina, custody mediation is required in all cases involving custody issues. Shortly after the filing and service of the lawsuit (generally within six to eight weeks), an order will be issued by the court directing the parties to participate in parent education and mediation orientation. Each party will be given a certain amount of time in which they need to complete parent education and mediation orientation. The parties must attend a one-time mediation orientation session and at least one mediation session. If the parties are unable to reach an agreement and if one of the parties or the mediator feels that mediation is no longer a solution, the case will be closed in mediation and a trial will be scheduled to settle the custody/visitation issues. The court employs the mediator and there is no charge for the custody mediation program. Custody mediation is successful in a high percentage of the cases in Mecklenburg County and offers you an opportunity to control the outcome of your own custody dispute.

10. Quick Facts About Custody

(1) A custody action may be maintained by a parent of a child, a person with a parent-child relationship with a child and a grandparent of a child who alleges parental misconduct.

(2) If a custody order is in place, the person seeking modification of that order must show there has been a substantial change in circumstances affecting the best interests of the child¸ in which the court will determine.

(3) There is a presumption that in a dispute between a parent and nonparent, the parent prevails unless: the court finds that the parent is unfit, has neglected the child or has engaged in conduct inconsistent with the parent's protected status as a parent.

(4) Grandparents with custody: Grandparents generally have standing to sue for custody of their grandchildren if they allege parental unfitness or child neglect, even if there is no ongoing custody dispute. Even though grandparents may have standing to seek custody, they may not have standing to seek visitation under analogous circumstances unless there is an ongoing custody dispute.

(5) Grandparents and visitation: Grandparents may be granted visitation rights, but they must carry the burden of proving that such visitation would be in the child's best interests.

(6) A potential father does not have the right to force the husband, who is always the presumed father under North Carolina law, to undergo blood testing. Rather, the husband is entitled to rely on the presumption that the child of the marriage is his.

(7) Stepparents have a duty to pay child support only while they are acting in loco parentis, i.e., when a stepparent has acted in place of the parent or like a parental figure. However, they may also obligate themselves by agreement for a greater duty of support.

(8) Grandparents financial support: They may have to share primary liability for the support of their grandchildren if one or both of the parents are minors themselves.

(9) Custody for same-sex couples: Under North Carolina law, any child born to same- sex parents has only one parent with any legal custody rights or a legal obligation to provide child support.

(10) Who can bring a custody action: A custody action may be initiated by any "parent, relative, or other person, agency, organization, or institution claiming the right to custody of a minor child." N.C.G.S. §50-3.1.

(11) What does the court look at when determining the fitness of a parent in a custody dispute? When the court is making a determination of the fitness of a parent in a custody dispute against a nonparent, the parent's conduct is examined on a case-by-case basis, but always looks at what is in the best interest of the child. In general, the court will be looking for unfitness, neglect and abandonment as a basis for any ruling which removes custody from a parent. N.C.G.S. 50-13.2(a).

(12) How is "unfitness" determined? The court has held that "unfitness" is to be determined by looking at the "totality of the circumstances". Raynor v. Odom, 124 N.C. App. 724, 478 S.E.2d 655 (1996).

11. The Peterson Presumption

Absent a finding that parents (i) are unfit or (ii) have neglected the welfare of their children, the constitutionally protected paramount right of parents to custody, care, and control of their children must prevail over the rights of third parties in an initial custody determination. Petersen v. Rogers, 337 N.C. 397, 445 S.E.2d 901 (1994).

12. Paternity Issues

Many times in custody or child support actions, third parties may raise questions about paternity. The North Carolina statute on blood testing, N.C.G.S. §8-50.1, directs that the court shall enter blood testing upon motion. However, the North Carolina Supreme Court has decided the statute does not give a putative or potential father the right to force the husband, who is always the presumed father under North Carolina law, to undergo blood testing. The presumption in North Carolina is that the child of the marriage is his. Johnson v. Johnson, 343 N.C. 120 (1996). This presumption cannot be overcome unless someone else has acknowledged paternity or has been adjudicated the father. Jones v. Patience, 121 N.C. App. 434 (1996).

13. Adoption and Third-Party Visitation

In the case of stepparent or relative adoptions, grandparents can establish visitation rights if a substantial relationship exists between that party and the child. N.C.G.S. §50-13.2

14. Modification

If a nonparent attempts to modify a custody order, they are required to prove that a substantial change in circumstances affecting the child has occurred, and that the parent is unfit or guilty of other conduct inconsistent with the parent's protected status as a parent. If proven, the "best interests" standard will apply. On the other hand, if a parent tries to modify a custody order the court will make its determination based on the circumstances under which the parent came not to have custody. If a motion to modify is set in motion by the parent, the parent must always begin by establishing that there has been a substantial change in circumstances affecting the child.

15. Stepparent's Duties of Support

Stepparents have a duty of support only while they are acting in loco parentis, or as the parent or in place of the parent. The court will enforce an agreement for child support entered into by the stepparent only if the agreement meets the formality requirements of other agreements spouses make between themselves on a routine basis; however, the court will first determine if the natural parent can pay. Moyer v. Moyer, 122 N.C. App. 723 (1996

16. Homosexual Relationships

According to N C. G S. §51-1.2, marriages between persons of the same gender are not valid. However, this does not mean that lesbians and gay men will not continue to become parents. It means that any child born to same-sex parents has only one parent with any legal custody rights or a legal obligation to provide child support. Therefore, it is important that people in same-sex relationships enter into a parenting agreement.

17. Declaratory Actions

A Declaratory Action is another avenue in which homosexual couples may use to determine who will be listed on the child's birth certificate as parents. Under this theory, a same-sex couple would utilize N.C.G.S. 49A-1 and 130A-101 to bring an action before or after the birth of the child asking that their names be placed on the birth certificate of the child just like an infertile same-sex couple might do in a surrogacy situation.

18. Parenting Agreements

A parenting agreement is simply a contract between two people which sets forth the expectations of the parties and their intent that they raise the child as equal parents. This expression of intent says to the world that it is the wish of the parties that the biological or adoptive parent and the parent with no legally recognizable parental rights share custody of the child.

19. Equitable Distribution

Equitable distribution is the process by which the court identifies, classifies, values and distributes property between two people who are or have been married. This can be thought of as property distribution amongst the parties. Despite the common misperception that the term "equitable distribution" implies that marital property and divisible property are divided equally in the event of separation and divorce, the term really means that marital property and divisible property are distributed by the court according to principles of fairness.

20. Types of Property Used in Equitable Distribution

(1) Marital Property: In general, this is all property obtained during the course of the marriage. The court will look at a list of factors, including but not limited to: length of marriage, efforts made by each spouse to acquire property and the incomes of each party.

(2) Separate Property: This is all property brought to the marriage by a party and all property received by one party by gift or inheritance.

(3) Divisible Property: This represents all property interests obtained between the date of separation and the date of distribution.

21. Elements of Equitable Distribution

(1) Marriage. A husband or wife may file the claim.

(2) Separation. Only spouses who are living separate and apart from each other may file a claim.

(3) Marital and Divisible Property. The court's task is to determine the marital and divisible property and to provide for an equitable distribution of the marital and divisible property between the parties.

(4) Asserted Before Divorce. Except for certain limited exceptions, an absolute divorce within North Carolina destroys the right of a spouse to equitable distribution, unless the right is asserted prior to judgment of absolute divorce.

22. Dependent Spouse

According to N.C.G.S. § 50 16.1A.(2), a "dependent spouse" means 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.

23. Supporting Spouse

A supporting spouse is a "spouse, whether husband or wife, upon whom the other spouse is actually substantially dependent for maintenance and support or from whom such spouse is substantially in need of maintenance and support." N.C.G.S. § 50 16.1A.(5)

24. The Process of Equitable Distribution

Equitable distribution can be broken down into a three-step process.

(1) Identification and Classification: First the parties must identify all property and characterize it accordingly. This is the step in which it must be decided if the property is considered to be: separate, marital or divisible.

(2) Valuation: The next step is for the value of the assets and debts of the estate to be determined properly. Without a prior agreement, such as a premarital agreement, this step must be done in order for equitable distribution to be done accordingly.

(3) Distribution:
Lastly, the property will then be equitably divided. There is a presumption in favor of an equal division; however, the court has great discretion in making an uneven distribution so long as at least one of the statutory factors affecting distribution is present. Some of those factors include: income, prior support obligations, financial and nonfinancial contributions to the marriage, value separate property, etc. N.C.G.S. §50-20(c)(1-12)

25. Active and Passive Appreciation/Depreciation of Property

An asset that has been classified as mixed (part marital and part separate) may have appreciated or depreciated during the marriage. Active appreciation in the value of a separate asset during marriage is marital. Active appreciation is caused by the efforts of the spouse during the marriage and prior to the separation. Passive appreciation of a separate asset during the marriage is separate. Passive appreciation is caused by market forces outside the control of an owner, or is created by the action of someone or something other than the efforts of the spouse. Whether appreciation or depreciation is active or passive may make a substantial difference in the value of the marital estate.

26. What to Expect: The Equitable Distribution Process (In Mecklenburg County, North Carolina)

(1) Equitable distribution claim is filed (by Complaint or Motion).

(2) Equitable distribution affidavits filed and served (at least seven days before the Initial Pretrial Equitable Distribution Conference).

(3) Initial Pretrial Equitable Distribution Conference (Initial Pretrial Equitable Distribution Order filed).

(4) Experts' Reports filed and served (by the Final Pretrial Equitable Distribution Conference).

(5) Alternative Dispute Resolution Completed (by the Final Pretrial Equitable Distribution Conference).

(6) Final Pretrial Equitable Distribution Conference (Final Pretrial Equitable Distribution Order filed).

(7) Equitable Distribution Trial.

(8) Order entered.

(9) Possibility of appeal.

27. Attorney's Fees With Equitable Distribution

The court will only award you attorney's fees in relation to your claim for Equitable Distribution if there are verified acts by the opposing party to waste, neglect, devalue or convert marital property during the period after separation and before the time of distribution. As always, this determination is in the discretion of the court.

28. Post-Separation Support (PSS)

Post-separation support laws were enacted in North Carolina effective October 1, 1995, and applicable to actions filed on or after that date. The purpose of PSS is to prevent the more financially secure party from starving out the less financially secure party and forcing that party into an unfair property settlement agreement. This award may also include an order requiring the supporting spouse to pay a portion of the dependent spouse's attorney fees.

29. Factors That Post-Separation Support Are Based Upon:

(1) Financial needs of the parties;

(2) Accustomed standard of living;

(3) Present employment income and other recurring earnings of each party from any source;

(4) Earning abilities of both spouses;

(5) Separate and marital debt service obligations;

(6) Necessary living expenses of both parties;

(7) Each party's respective legal obligations to support any other person; and

(8) Pre-separation marital misconduct of both parties.

(9) Marital misconduct.

30. Alimony and Entitlement to Alimony

While post-separation support is temporary in nature and is designed to put the parties on equal footing, alimony is designed to be more long term or permanent in nature. Like PSS, the court, after considering all relevant factors, will determine the duration and amount of alimony.

31. Before a Court Will Award One Party or the Other Alimony, You Must:

Be the dependent spouse, which means you are actually and substantially dependent upon the other spouse for support or substantially in need of support from the other spouse; and it must be equitable or fair to award the dependent spouse alimony. Equitable is determined according to the following relevant factors (same as with PSS):

(1) Financial needs of the parties;

(2) Accustomed standard of living;

(3) Present employment income and other recurring earnings of each party from any source;

(4) Earning abilities of both spouses;

(5) Separate and marital debt service obligations;

(6) Living expenses of both parties necessary for support of both; and

(7) Each party's respective legal obligations to support any other person.

(8) Illicit sexual behavior in entitlement of alimony.

(9) Marital misconduct.

32. What Is Marital Misconduct?

Marital misconduct as defined by N.C.G.S § 50 16.1A(3), as any of the following acts that occur during the marriage and prior to the date of separation and includes the following:

(1) Illicit sexual behavior;

(2) Involuntary separation of the spouses in consequence of a criminal act committed prior to the proceeding in which alimony is sought;

(3) Abandonment of the other spouse;

(4) Malicious turning out of doors of the other spouse;

(5) Cruel or barbarous treatment endangering the life of the other spouse;

(6) Indignities rendering the condition of the other spouse intolerable and life-burdensome;

(7) Reckless spending of the income of either party, or the destruction, waste, diversion or concealment of assets;

(8) Excessive use of alcohol or drugs so as to render the condition of the other spouse intolerable and life-burdensome;

(9) Willful failure to provide necessary subsistence according to one's means and condition so as to render the condition of the other spouse intolerable and life-burdensome.

33. What Is Illicit Sexual Behavior?

Illicit sexual behavior is comprised of deviant sexual intercourse or acts, and criminal sexual acts engaged in by one spouse with someone who is not their spouse. N.C. G.S. 14 27.1(4).

34. What Is Actual Abandonment and What Is Constructive Abandonment?

Actual abandonment is when one spouse, without reason or the consent of the other spouse, terminates cohabitation with their spouse with intent not to renew cohabitation at a later time.
Constructive abandonment comprises a type of abandonment that might occur within the home without one spouse leaving, such as the spouse removing themselves mentally and physically from the marriage, yet still remaining in the home.

35. What Is Malicious Turning Out of Doors?

Malicious turning out of doors is a phrase that is utilized to describe when one spouse removes their spouse from the home with an intent not to let them back in or prevents their spouse from coming back into the marital residence. For example, one spouse might have the locks changed on the doors to the marital residence when one spouse goes to work with the intent that their spouse not come back into the marital residence.

36. What Are Indignities?

Indignities cover a multitude of actions and behaviors that might be exhibited by a spouse. The statue stipulates that indignities should rise to the level that they render the living conditions intolerable and light burdensome for the spouse who is subject to the indignities. Indignities might include a pattern of abuse, verbal or mental, humiliation or unreasonable behavior.

37. What Is Reckless Spending?

Reckless spending is a term utilized to describe a pattern of spending by one spouse which is not intended to benefit both parties, or the marriage itself.

38. Cohabitation occurs when two adults dwell together continuously and habitually in a private heterosexual or homosexual relationship.

39. Prenuptial, Separation and Property Settlement Agreements

In general, parties have the right to mutually agree between themselves how they desire to handle various issues stemming from dissolution of a marriage and have their agreement set forth in a legally binding written agreement. There are different types of agreements individuals may enter into — there are premarital agreements, separation and property settlement agreements and postnuptial agreements.

40. Premarital Agreements

Premarital agreements are agreements that parties enter into prior to marriage where the parties determine how issues arising from the marriage will be resolved in the event of separation, divorce, death or the occurrence/nonoccurrence of any other event. In a premarital agreement parties often set forth how property will be divided in the event of a separation, divorce or death and how alimony issues will be resolved (elimination, modification or otherwise) in the event of a separation or divorce. Premarital agreements must be in writing, signed before a certifying officer and must not be inconsistent with public policy. A premarital agreement becomes effective upon the prospective marriage actually taking place and is governed by the Uniform Premarital Agreement Act. See also, N.C.G.S. §50B-4.

41. Postnuptial Agreements

Postnuptial agreements are agreements entered into after the date of marriage but prior to the date of separation. A postnuptial agreement, like premarital and separation agreements, shall be legal, valid and binding in all respects provided that the agreement is in writing and acknowledged by both parties before a "certifying officer."

42. Mediation

Mediation is essentially a procedure whose objective is to have the parties craft their own solutions to their disputes, rather than relying on the decision of the judge to make it for them. The process by which mediation occurs is a simple one: A mediator goes back and forth between the two parties to create a compromise of each party's desires. This agreement, is often less costly then the courtroom setting, and leaves the parties on much more amicable terms. To legalize the agreement, both parties and their respective attorneys must first review the proposed settlement, and then sign the agreement before a notary public.

43. Arbitration

Arbitration is different from that of mediation as the ruling the arbitrator makes is both legitimate and final. Essentially, an arbitration is a method of dispute resolution through a neutral third party, the arbitrator, whose decision is legally enforceable and binding. The arbitrator's ruling is valid in both state and federal court, and thus no need for a courtroom or trial exists here either.

44. Domestic Violence

N.C.G.S §50B-1, also known as the Domestic Violence Act, defines domestic violence as follows:
(1) Attempting to cause bodily injury, or intentionally causing bodily injury; or

(2) Placing the aggrieved party, or a member of the aggrieved party's family or household, in fear of imminent bodily injury or continued harassment that rises to the level as to inflict substantial emotional distress; or

(3) Committing the criminal acts of first and second rape, and first- and second-degree sexual offense.

45. How Is an Abuser Classified in DV Cases?

The abusing person must be:
(1) a current or former spouse;

(2) persons of the opposite sex who live together or have lived together;

(3) related as parents and children, grandparents and grandchildren (a person cannot obtain a restraining order against a child or grandchild under the age of 16);

(4) parties who have a child in common;

(5) are current or former household members; or

(6) are members of the opposite sex involved in a dating relationship. (A casual acquaintance or ordinary fraternization between persons in a business or social context is not a dating relationship.)

46. How Does Domestic Violence Affect Child Custody and Visitation?

North Carolina law provides that in certain circumstances, a person's domestic violence history may affect the custody or visitation rights of that parent, if it would be consistent with the best interests of the child. According to N.C.G.S. §50B-3(a1)(2), "For the purposes of determining custody and visitation issues, the court shall consider the following:"

(1) Whether the minor child was exposed to a substantial risk of physical or emotional injury or sexual abuse.

(2) Whether the minor child was present during acts of domestic violence.

(3) Whether a weapon was used or threatened to be used during any act of domestic violence.

(4) Whether a party caused or attempted to cause serious bodily injury to the aggrieved party or the minor child.

(5) Whether a party placed the aggrieved party or the minor child in reasonable fear of imminent serious bodily injury.

(6) Whether a party caused an aggrieved party to engage involuntarily in sexual relations by force, threat, or duress.

(7) Whether there is a pattern of abuse against an aggrieved party or the minor child.

(8) Whether a party has abused or endangered the minor child during visitation.

(9) Whether a party has used visitation as an opportunity to abuse or harass the aggrieved party.

(10) Whether a party has improperly concealed or detained the minor child.

(11) Whether a party has otherwise acted in a manner that is not in the best interest of the minor child.

47. Adoption

According to N.C.G.S. 48-1-101(2), "adoption means the creation by law of the relationship of parent and child between two individuals," which will permanently sever the relationship of the child and the child's biological parent or parents. There are two types of adoptions in North Carolina: (1) private adoptions and (2) agency adoptions. The statutory procedures for private adoption or agency adoption will differ. Other articles under Chapter 48 will cover adoptions of minors, adult adoptions, stepparent adoptions, and the re-adoptions of a child by his or her natural parent after a stepparent adoption. It is important to note that in a stepparent adoption, when a stepparent adopts his or her stepchild, the adoption does not terminate the relationship of the child with his or her natural, biological parent who is, of course, the spouse of the adopting stepparent. Once an adoption decree is signed, the adoptee-child has the same legal status as a legitimate child born to the adoptive-parent and may inherit through his or her adoptive parents via intestate succession.

48. Private Adoption

Private or direct adoption placements are those made by the natural, biological parents either directly to prospective adoptive-parents or through a nonlicensed intermediary such as a physician, lawyer, relative or friend.

49. Agency Placements

Agency placements are those made by a licensed private adoption agency or an official state bureau designated to make adoption placements. In an agency placement, the child is formally "surrendered" or "relinquished" by the biological parents to the agency, which then acts in place of the parents in seeking to bring about a desirable adoption.

50. Petition for Adoption

A party wishing to file a Petition for Adoption must also provide the following documents with their Petition:

Pursuant to Chapter 48, the court is required to set a hearing date on your adoption Petition within 90 days after you file your Petition for Adoption. Within six months after the date the Petition for Adoption is filed, a hearing or disposition of your adoption Petition must take place. If the adoption is to take place by consent, and the adoptive parent is found to be fit and proper, there will be no need for a hearing. If, however, a hearing is to take place, the court will have to determine by a preponderance of the evidence that: (1) it is in the best interests of the minor child that the adoption takes place; (2) that the adoptive parents are fit and proper; and (3) that all the statutory procedures have been met.

51. Alienation of Affection

In an alienation of affection claim, a plaintiff spouse must show:

(1) that the parties were happily married with "genuine" love and affection between them;

(2) that the love and affection between the parties was alienated and destroyed; and

(3) that the loss of love and affection was caused by the "wrongful and malicious" acts of the defendant.

There are virtually no defenses to this cause of action except for a total absence of love and affection. Punitive damages will be allowed under certain circumstances. A defense against an alienation claim may exist if a defendant can show that defendant did not know that the object of his or her affections was in fact married. The parties to the marriage must still be together in order to prove this claim, and thus, the date of separation becomes very important.

52. Criminal Conversation

The statute of limitation for criminal conversation and alienation of affection, pursuant to N.C.G.S. §1-52(5), is three (3) years. The three-year statute of limitation will begin to run on the date that alienation occurred, which is determined by a court on a case-by-case basis.

Criminal conversation is often referred to as a "strict liability tort" because a plaintiff only has to demonstrate that:

(1) There existed a valid marriage between the spouses; and

(2) Evidence of voluntary sexual relations between the defendant and the plaintiff's spouse during the course of the marriage, i.e. adultery.

The only real defense to criminal conversation is that the plaintiff spouse consented to the adultery between the defendant and his/her spouse

53. What Is Alimony and How Is It Paid?

Alimony is a payment from one spouse to the other spouse for the support and maintenance of that spouse. Alimony is paid either in a lump sum or it can be paid on a monthly or yearly basis.

54. Who Decides Alimony? A Judge or Jury?

If your case is not settled out of court via a Separation and Property Settlement Agreement or through a Consent Order, then your claim for alimony will be decided by a judge.

55. Who Has a Claim to Receive Post-Separation Support and Alimony?

Once it is demonstrated there was a dependent spouse and a supporting spouse, the court will look to see if the supporting spouse has the ability to pay. The court will then decide the amount and the duration of the post-separation support or alimony based on a multitude of factors. Please refer to the factors the court utilizes to determine post-separation support and alimony within the Post-Separation Support and Alimony section of this website.

56. What Factors Do the Court Consider in Determining Alimony?

The court will review a multitude of factors, which include the length of the marriage, the earning capacity of the parties and marital misconduct. Please refer to the factors the court utilizes to determine post-separation support and alimony within the Post-Separation Support and Alimony section of this website.

57. What Are Possible Defenses Against Actions of Marital Fault?

(1) One possible defense against an action of marital misconduct is that the spouse did not perpetrate the marital misconduct.

(2) Another possible defense against a claim of marital misconduct is that the marital misconduct occurred as a result of marital misconduct on the part of the accusing spouse.

58. Condonation

Condonation is a term which is utilized to describe a situation where one spouse has condoned or forgiven the marital misconduct of their spouse and, therefore, they are prohibited from utilizing marital misconduct as a supporting factor for their claim for alimony.

59. Post-Separation Support

Post-separation support is essentially the same thing as temporary alimony. It is spousal support that is paid until the date that is specified in the Post-Separation Support Order issued by the court or until an actual Order for Alimony is entered.

60. If the Dependent Spouse Engages in Illicit Sexual Behavior, Does He/She Receive Alimony?

The answer to this question is: It depends. If the dependent spouse engages in illicit sexual behavior and that behavior is proven in a court of law, it may have an impact on the amount and duration of the alimony that spouse receives if the court decides that they would have been entitled to such an award notwithstanding the illicit sexual behavior. Proof of illicit sexual behavior could mean a decrease in the amount or a shortening of the duration of the alimony award, or it could mean an outright denial of alimony to that spouse. It will depend on the evidence brought forth in court and in the testimony of the witnesses.

61. What in Fact Could My Dating Another Person Have on Post-Separation Support and Alimony?

In the state of North Carolina, your spouse can bring a third-party claim for criminal conversation against someone you are in a romantic relationship with up until the time of divorce. What this means is after separation from your spouse you still run the risk of your spouse citing marital misconduct if you are dating and having sexual relations with a third party.

62. Does a Divorce Have to Be Pending to Bring an Action for Post-Separation Support and Alimony?

You must only be separated in order to bring an action for post-separation support and alimony. As with equitable distribution, child support and child custody, post-separation support and alimony can be filed, settled, or litigated long before your divorce compliant is ever filed and granted.

63. How Is the Supporting Spouse's Income Used to Determine Alimony?

The Court will be looking at financial affidavits filed by the respective parties. These financial affidavits will set forth the income earned on a monthly basis by each party and the expenses they pay on a monthly basis. The Court must be able to see that the supporting spouse has discretionary income left over on a monthly basis after all reasonable expenses have been paid. The Courts will additionally look at the earning capacities of the spouses, the health status of the parties involved and the income of the parties involved rather than at what might be the case in the future.

64. Can My Spouse Quit Working to Avoid Paying Alimony?

If a spouse is purposely decreasing their income, the court may impute or allocate the income to them that they used to make when they were previously employed. Ultimately, the court will be looking toward the intent of the paying parent to determine if the spouse was attempting to evade paying by either quitting or purposely getting fired from their employment.

65. Modification or Vacation of Alimony

Alimony may be modified if an award of alimony is made through an order, either a consent order or an order handed down by the court after litigation. The standard for the modification of alimony is that a substantial change in circumstances has occurred since the entry of the last order relating to alimony. Alimony may not be modified if it is dealt with in a Separation and Property Settlement Agreement or a Premarital Agreement.

66. Termination of Alimony

Alimony award may be terminated under three circumstances. Those circumstances are: the death of either party, the remarriage of the party receiving alimony or cohabitation by the receiving party.

67. Enforcement of Alimony

An alimony order may be enforced by the contempt powers of the court. If alimony is not paid in a timely fashion you may enforce your award for alimony through a motion for contempt.

68. Is Alimony Taxed?

Typically alimony is taxed as income to the recipient spouse and deductible to the payor spouse. However, you should seek the advice of counsel when structuring your alimony award as there are many different ways an award of alimony can be handled regarding tax consequences.

69. Can I Recover Attorney's Fees?

Like your claims for child support and child custody, you may recover attorney's fees for alimony if factors such as bad faith during the litigation process, and the relative ability of the parties to pay attorneys' fees, have been exercised.

70. Can Post-Separation Support, Alimony and Attorney's Fees Be Waived? What Role Do Separation Agreements and Premarital Agreements Play in This Process?

If you enter into a Separation and Property Settlement Agreement or a Premarital Agreement you may waive post-separation support, alimony and attorney's fees. This will be non-modifiable because both a Separation and Property Settlement Agreement and a Premarital Agreement are contracts between you and your spouse and may only be modified with the consent of both parties.

71. Can Spouses Testify Against One Another in an Alimony Action? What Evidence May Be Excluded?

Spouses may testify against each other in an alimony action; however, hearsay will be excluded as evidence. Additionally, acts of marital conduct that have been condoned by the party seeking alimony will also be excluded.

A 72. What Is Meant by Alimony Recapture?

Alimony recapture refers to a tax consequence that might apply to the payor spouse when the alimony payments decrease over a three-year period. You should seek the advice and counsel of an attorney in determining whether you may be subject to the alimony recapture rule due to the manner in which your payment of alimony is structured within your specific situation.