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Child Custody & Visitation
Alienation Of Affection
Negotiation And Litigation
Mediation And Arbitration
No two divorces are the same. Some may be highly contentious, with parties at odds over virtually every issue. Others may be less volatile and the parties simply want to quickly resolve their differences and move on with their lives.
Whatever your circumstances, Rik Lovett and Associates can employ the best legal tools and provide top notch wise counsel to see to it that you achieve your goals.
There Are Essentially Three Ways To Resolve A Divorce Action:
- Negotiating directly between the attorneys, usually in the form of circulating drafts of Separation Agreements, e mails, letters or Consent Orders
- Setting an “event” such as a settlement conference, formal mediation, arbitration, or collaborative law session(s)
- Litigating the case – which may involve a combination of trials, Motions hearings, depositions and discovery.
After appropriate fact gathering and intently listening to the client’s goals and objectives, we will select the best option for you.
We represent people in all types of divorces from those involving complex and extensive assets along with complicated, high conflict child custody and child support/spousal support issues as well as clients with cases simple enough to resolve with a straightforward Separation Agreement and uncontested divorce.
Child Custody And Visitation
North Carolina must be the home state of the minor child in order for a court to determine a custody and visitation schedule between the parties. To determine custody, the court considers the best interests of the child. North Carolina has abolished the maternal preference, so there is no presumption that the mother should have primary custody, regardless of the parties’ marital status. However, with regard to third party nonparents, there is a presumption that custody with the biological parent is in the best interest of the child, unless the parent is deemed unfit by the court. Child custody is no longer as routine as “every other weekend.” Instead, parties can agree on a visitation schedule that fits the lifestyle of the parties. Our attorneys have significant experience in advocating for custody. We understand that your children are the most important part of this process, and take our role seriously in ensuring you receive as much time with your children as possible.
In North Carolina, child support is based on the income of the parties and the number of overnight visits allotted to each party. Additional expenses, like health insurance, daycare, and private school tuition may also be factored into the equation. If child support is an issue in your case, our attorneys will run several child support scenarios during your initial consultation. These scenarios will give you an idea of what you may be expected to pay or what you might expect to receive as a monthly child support payment.
North Carolina provides for two kinds of spousal support. Post separation support is temporary support, while alimony is permanent support. Support is provided only for the dependent spouse, which means that either the husband or wife can request support so long as he or she was dependent on the other party. The court considers many factors in determining how much support should be awarded, including contributions to the marriage, duration of marriage, and misconduct. Our attorneys will carefully review your case to ensure we provide the strongest argument in line with these factors. Support is a claim that can be lost if not claimed; thus, it’s important that you consult one of our attorneys before you pass on the opportunity for spousal support.
Alimony means spousal support. In order for a party to a divorce action to be eligible for alimony, there has to be a supporting spouse and a dependent spouse. These terms have specific legal definitions, but in short, the dependent spouse has to be actually dependent on the supporting spouse or substantially in need of maintenance and support from the supporting spouse to meet the lifestyle that the dependent spouse became accustomed to during the marriage. The “span” of the marriage that courts typically look to to determine the lifestyle to which the parties became accustomed is the last 3 to 5 years. Both parties complete income and expenses affidavits. The most important factors in an alimony case are the income and expenses of the supporting spouse and the income and expenses of the dependent spouse. If the expenses of the dependent spouse are found to be $3500 a month (example), and the ability of the supporting spouse to pay alimony is found to be $2500 a month, than a Judge will have to determine which expenses of the parties are legitimate and which are not as well as factors such as whether the supporting spouse can return to work within a specified period of time.
There are quite a few additional factors that a Judge can consider in an alimony case including: marital misconduct, age and physical and mental health of the parties, duration of the marriage, contributions by one spouse to the education, training, or earning power of the other, relative education of the spouses, time needed for the spouse either spouse, tax ramifications, any other factor relating to the economic circumstances of the parties that the court finds to be just and proper, etc.
Many things are acquired during a marriage, including real estate, vehicles, retirement, and debt. In North Carolina, our courts utilize equitable distribution, which means that marital property is divided equally between the parties. Our firm assists you in sorting through marital property and helps you identify any separate property. Separate property, like retirement earned prior to the marriage or inheritance, can be removed from property division so long as we can trace the funds. Our firm is skilled in handling property division. Our attorneys pay close attention to the details to ensure you keep what’s rightfully your property.
In North Carolina, parties are required to be physically separated for one year prior to filing for absolute divorce. From the day of filing, it takes approximately 45-60 days for a divorce to be finalized. Our firm makes the absolute divorce process easy for our clients. We take care of everything from the initial filing to representing you in court when the judge signs the order. By hiring our firm to take care of your absolute divorce, it’s unlikely you will have to show up in court at all.
Alienation Of Affection
North Carolina is one of only a handful of states that allows an “innocent spouse” to sue his/her spouse’s lover for alienation of affection and criminal conversation. These are torts (just as a slip-and-fall or car accident case would be). A lawsuit is filed and a trial is held (either by a judge or jury). Alienation of affections and criminal conversation Alienation of affections requires three things: (1) a genuine love and affection existing between you and your spouse and (2) that the genuine love and affection was destroyed (3) by the malicious conduct of the third party (the boyfriend/girlfriend). It is a valid (and common) defense to an alienation of affections lawsuit that the marriage had already broken down prior to the arrival and actions of the boyfriend/girlfriend.
Criminal conversation, in contrast, requires only: (1) sexual relations (2) with someone NOT your spouse (3) during the marriage and prior to the date of separation. In a criminal conversation case, it is NO defense that the marriage had already broken down. It is also NO defense that the boyfriend/girlfriend did not know that the person was married. In fact, the spouse can lie about his/her marital status—as long as the Plaintiff (the innocent spouse) was not a part of that lie/fraud.
Negotiation & Litigation
Negotiation and litigation – Practically speaking, there are really two “big picture” ways in which parties to a divorce can resolve their case – negotiate an out of court settlement or litigate their case (and let the Judge make the decision on all contested domestic issues). The classic way “negotiated cases are done in a domestic / family law case are:
A. The parties go “back and forth” between their attorneys with drafts of Separation Agreements. Through this process, the issues are narrowed and a Separation Agreement eventually gets executed, ending the case.
B. The parties set up a settlement conference with the attorneys and the parties present. They can either time limit this or put it on the calendar for the entire day. The objective is to resolve all issues of child custody, child support, alimony, and the property division (and whatever other contested issues there are) in one sitting (and sign a Separation Agreement or Memorandum of Agreement (written bullet points that can later be commemorated in a Separation Agreement).
C. The parties engage in formal mediation with a third party mediator / neutral who brokers a deal. Having this neutral third party (particularly if he or she is experienced and possesses a lot of emotional intelligence) typically increases the chances of a deal getting made.
If the parties are unable to resolve their case in an out of court negotiated deal, one party or the other will file a lawsuit and serve it on the other. The Family Court system will then calendar temporary issues (the first step in litigation)potentially including temporary child custody, temporary child support, post-separation support, attorney’s fees, interim allocation, and divorce from bed and board.
If the parties are still unable to resolve their case, depositions (where parties and witnesses are compelled to respond to questions under oath), discovery (written questions and requests for documents), and trials on permanent issues (permanent child custody, alimony, and property division (equitable distribution) will follow.
Mediation & Arbitration
The courts would come to a screeching halt if every case went to trial. There simply would not be enough time in the day and there are simply not enough resources to try out every single case that is filed with the courts. For this reason, the courts have mandated “alternative dispute resolution” (ADR) methods that are required prior to trial in an effort to resolve cases amicably and quickly while also saving precious judicial resources. The success of these ADR procedures has led parties to engage in these procedures voluntarily—many times before even filing a lawsuit.
present and will most likely both be represented by an attorney. There will also be an impartial third-party, jointly selected by the parties (or the court). The mediator’s goal is not to force an agreement on the parties, but rather to Mediation and arbitration are the two big ADR procedures in family law. At a mediation, both parties will be present and will most likely both be represented by an attorney. There will also be an impartial third-party, jointly facilitate an agreement between the parties. At a mediation, you will likely feel that the mediator is “playing for the other side”; that he’s pushing you too far. He is pushing you—towards the middle. When he is with the other side, he is doing the exact same thing. Unless both parties make their way to the middle, then there will be no agreement.
An arbitration, in contrast, is where the parties voluntarily submit their case to impartial third-party who is NOT a judge. The arbitrator reviews evidence, hears testimony, listens to the lawyers argue the law, and then renders a decision which is binding on the parties. The benefit of going the arbitration route (rather than letting a judge decide) is that a decision can be reached much more quickly. It can takes months to get into court to argue a motion and some trials are scheduled a year in advance. In contrast, an arbitration can be lined up in short order.
Marriage (and, subsequently, divorce) bring with it certain rights, obligations, and privileges, which are defined by statute, case law, and history. However, the law acknowledges that not all marriages are identical. As such, the law allows parties some flexibility in defining those rights, obligations, and privileges.
Prior to marriage, parties may enter into a prenuptial agreement (also called a premarital agreement or an antenuptial agreement). A “prenup” is entered into PRIOR to marriage but does not become effective the marriage actually occurs. Accordingly, if the parties never make it to the altar, the prenup is just a piece of paper. A prenup may cover such things as how to divide property in the event of death or divorce, the modification or elimination of alimony, how property is to be used during the marriage, and “any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.”
When dealing with a prenup, the most common problems are (1) a party failing to make a full disclosure of his assets prior to the signing of the agreement and (2) forcing the issue too close to the wedding, thereby making the other side seem pressured to sign or the wedding ceremony falling through. North Carolina has no bright-line mark to determine what is a “enough time.”
During marriage, parties may enter into a postnuptial agreement. A post-nup has a more limited range than a prenup. Unlike a prenup, a post-nup can deal only with the parties property. The parties can transfer property to each other and can decide how property will be divided in the event of death or separation. Most importantly, a post-nup cannot deal with alimony.
Both prenuptial agreements and postnuptial agreements must be in writing and both parties’ signatures must be acknowledged by a notary public (or other appropriate official).
It’s a misconception that you are required to file a document with the court when you separate from your spouse.Instead, it’s important that you and your spouse come to an agreement regarding the global issues of your separation. These issues include equitable distribution (property division), spousal support, child custody, and child accounts to who gets Christmas with the kids next year. It’s important to ensure that a separation agreement addresses the big picture and the small details to prevent unnecessary stress in the future. Our attorneys are experienced at drafting and negotiating separation agreements, so you can be confident that all issues will be brought to your attention.
N.C.G.S. sec 50B is N.C.’s domestic violence statute. There are several ways in which parties to a “personal relationship” (i.e. current or former spouses, persons of the opposite sex who have lived together or live together currently, parties who have a child in common, are current or former household members, or are persons of the protective order against the opposing party. The moving party files a Petition for Domestic Violence and serves it on the other party. The Petition needs to allege that the party alleged to have committed acts of domestic violence did one of the following:
A. Attempted to cause bodily injury or intentionally caused bodily injury
B. Placed the aggrieved party or a member of the aggrieved party’s family or household in fear of imminent serious bodily injury or continued harassment that rises to such a level as to inflict substantial emotional distress, or,
C. Commits a criminal sex act against the Defendant.
Domestic violence restraining orders typically last for one year and can be renewed (usually for one additional year).
Once you have gone to court and argued your case to the judge, the judge will issue an order. This order may order one party to pay child support or alimony. Or it may dictate a child custody schedule. Or it may determine who is to get what marital property. Most parties will follow the court’s order.
But what happens if one party doesn’t do what he is supposed to do? The court cannot simply allow parties to ignore the court’s order. That is why courts have the power to hold a party in contempt for failing to comply with an order of the court. There are two kinds of contempt: civil and criminal. The type of contempt depends on what the party has done and what you want.
Civil contempt is intended to COMPEL a party to do what he is supposed to do. If your spouse is not paying you child support or alimony like he is supposed to, or he is not transferring property to you that was assigned to you under an equitable distribution order, this is a civil contempt issue. If the court finds your spouse in civil contempt, the court can order your spouse to be jailed until he gets caught up on his past payments. Civil contempt hearings come with “purge provision”—that is, a way in which the person in contempt can purge himself of contempt. Frequently, it will require the person to pay some percentage of the total amount he owes you up front in order to get out of jail. (Jail is not automatic when being found in civil contempt, but it is a powerful threat/tool.)
Criminal contempt, in contrast, is intended to PUNISH a party for doing something that he was not supposed to do. If your spouse denied you visitation with your children last weekend – civil contempt does not work (you cannot jail him so he won’t do something in the past). So, your remedy is to punish him. Under criminal contempt, a party can be fined up to $500.00 and/or jailed for up to 30 days.
In addition, in many family law contempt hearings, the prevailing party can get his/her attorney’s fees paid by the losing party.
Court orders in North Carolina (either Consent Orders or Orders entered by a Judge after a hearing / trial) for child change in circumstances.” For example, if a party was paying child support of $2800 a month for three children, and one of the children ages out (i.e. turns 18 or graduates from high school – whichever comes last) and another child of the marriage who was in private school switched to public school and the income of the dependent spouse increased by 27%, a Judge is likely to find that a “substantial change in circumstances” has occurred, and apply (as the new court ordered amount of child support) the N.C. Child Support Guidelines.
If you believe that a substantial change in circumstances has occurred and you have a court order for child custody, child support, post-separation support, or alimony, please give us a call and set an appt. for a thorough review of the facts of your case / changes that have occurred. You don’t want to continue to live with a court order that simply no longer applies to the facts of your case.
A Separation Agreement / Property Division is a contract and, as a general rule, unlike a court order, is non modifiable. However, this may not always be the case (depending on the wording of the contract). So, if circumstances have changed, it is a good idea to set an appt. and have us review your Separation Agreement/Property Settlement as well.
Unlike a divorce, which terminates a marriage, an annulment is a judicial declaration that there was never a marriage in the first place. The result of an annulment is that, because there was no valid marriage, there is no right to post separation support, alimony, and equitable distribution (property division).
An annulment may be issued in these situations only:
1. Between a man and woman who are nearer of kin than first cousins OR are double first cousins.
2. If either the man or the woman is under the age of 16. (But note – a marriage may not be annulled under this prong IF the woman is pregnant or a child has been born, unless the child dies before the annulment petition is filed.)
3. If either the man or the woman is married to someone else at the time of the marriage ceremony (i.e., bigamy).
4. If either person is physically impotent at the time of the marriage ceremony.
5. If either man or woman incapable of contracting from want of will or understanding at the time of the marriage ceremony.
6. If the marriage was contracted under a representation and belief that the woman is pregnant, followed by the separation of the parties within 45 days of the marriage which separation has been continuous for a period of one year – unless a child shall have been born to the parties within 10 lunar months of the date of separation, in which case annulment is not an option.
Unlike some states (and some rather infamous short-lived marriage), North Carolina does NOT allow for an annulment on the basis that the parties decided to undo the marriage within 24 (or so) hours.
With the exception of bigamy, all of the grounds above lead to a voidable marriage. That is, the marriage is not automatically null and void, but it may be declared null and void by petitioning the courts. However, failure to petition the courts for an annulment in a timely manner may lead to a “ratification” of the voidable marriage—thereby making the marriage valid.
In contrast, bigamy creates a void marriage that cannot be cured—other than “remarriage” after the prior marriage is property terminated. An annulment petition would still be necessary to declare the marriage void, though.
All cases start in the trial court (district court or superior court). For domestic cases, your case will be in the district court. After the lawsuit has been filed and you have gathered all the evidence you need, there will be a trial. Following that trial, the judge who presided over your case will issue his decision, which will be put in writing and will become an order of the court.
What happens if you think the judge got it wrong? The judicial system is set up on the premise that judges are, in fact, human and errare est humanum. If you think the judge reached the wrong decision—either on the facts or the law—you have the right to appeal. You have an appeal of right to the N.C. Court of Appeals.
Generally, you have to file your Notice of Appeal within 30 days after the judge’s order is filed with the Clerk of Court. Also, generally, you have to wait until after the entire case has been decided and the judge has rendered a decision on all the parties’ claims. However, if an order affects a substantial right of yours, you can appeal before the judge has rendered a decision on all the parties’ claims.
Once the Notice of Appeal is filed, there are very strict deadlines set forth by the Rules of Appellate Procedure to perfect your appeal. If everything is done properly, the Court of Appeals will render a decision. The Court of Appeals can (1) affirm the trial court’s decision, (2) modify the trial court’s decision, or (3) reverse the trial court.
If you don’t like the decision of the Court of Appeals, there is the N.C. Supreme Court. The N.C. Supreme Court has to take your case (if you ask them to) on any issue on which the Court of Appeals was not unanimous. If the Court of Appeals was unanimous, you have to petition the Supreme Court to take your case – and they are not required to take it.
Grandparents are not granted automatic rights to their grandchild in North Carolina. Grandparents do not have standing to seek visitation with grandchildren unless there is an ongoing custody dispute. However, grandparents may have standing to seek custody of grandchildren if they are able to prove that the custodial parent is unfit or neglects the children. During an initial consultation, our firm can review your circumstances and determine whether or not you have a strong case as a grandparent seeking visitation or custody.
We live in a mobile society. Parties to a marriage (with minor children) who divorce may not always live in the same town. When a party to a divorce who has minor children moves, this is what is commonly known as a “parental relocation case.” It is important not to just unilaterally move (with the children) without sending a written notice to the opposing party (giving fair advance warning and an opportunity to return to mediation or negotiate out a new deal). If the parties can’t work something out, typically one party or the other will file either a Complaint for Child Custody (if the issues has not been addressed by the courts previously) or a Motion to Modify Child Custody (if the issues has been addressed by the courts previously).
Typically, if the parties can work out a new custody arrangement in mediation or negotiations, they agree to allow the party who moves away (or is left behind) to exercise visitation once a month. There is one long week end each month (typically attached to a Holiday such as Thanksgiving, Christmas, Easter, Memorial Day, Labor Day, President’s Day, etc.). The parties typically agree that the parent who gets visitation rights (i.e. the non custodial parent) receives visitation consisting of one long week end a month, the major Holidays are equally divided, as are Summers and track out periods. The parties are free to agree on whatever they wish, this is just one fairly typical arrangement. Another big issue that has to be worked out in these situations is “who pays” for the trips back and forth?
If the parties can’t come to an agreement and have to litigate the issue, a Judge hearing the case will typically have to determine first, if the move constitutes a “substantial change in circumstances” and then compare things such as the job that the party moving away obtained in the new location (better pay? better benefits? better lifestyle for the children? etc….), the school districts, where the party moving away will be living (high or low crime district) compared to where they were living here, etc.