Family Disputes
Managing the Effects of Divorce
Divorce: A spouse can bring an action for divorce after one year passes from the date of separation. Managing the effects of divorce is critical for both individuals, as litigation to resolve such emotionally charged disputes can be extraordinarily expensive and time-consuming.
Separation Agreements: Once a spouse desires to permanently live separate and apart, and it becomes apparent that the marital relationship is destined for dissolution, the parties may agree to some or all of the terms which govern the issues between them. Like all agreements between persons in a confidential relationship, the agreements are more susceptible to charges they were not entered into voluntarily and the law requires more formalities than it does for other contracts. Legal representation is often critical to ensure compliance with those formal requirements.
In general, North Carolina courts favor the amicable resolution of all disputes, including those between spouses. See Hagler v. Hagler, 319 N.C. 287, 290, 354 S.E.2d 228, 232 (1987) (observing that North Carolina favors separation agreements); accord, Topper v. Topper, 105 N.C. App. 239, 242, 412 S.E.2d 173, 174–75 (1992) (concluding that separation agreement was enforceable where agreement was thorough, well-drafted, and contained language that made it clear that defendant had a full understanding of its implications pertaining to her entitlement to marital property); Hill v. Hill, 94 N.C. App. 474, 480, 380 S.E.2d 540, 545 (1989) (concluding that property settlement agreement that waived rights to equitable distribution was enforceable where wife failed to prove that agreement was unconscionable or patently unfair).
Equitable Distribution: In an action for equitable distribution, the trial court must “determine what is the marital and divisible property” and to “provide for an equitable distribution of the marital and divisible property between the parties.” G.S. § 50-20(a). Beightol v. Beightol, 90 N.C. App. 58, 367 S.E.2d 347, disc. rev. den., 323 N.C. 171, 373 S.E.2d 104 (1988). An action for equitable distribution is a complicated two-step process that requires the valuation of assets of marital debts and the equitable distribution thereof.
Post-separation spousal support: The post-separation support statutes authorize payment only to a spouse who is dependent. Dependency requires that either spouse is (1) “actually substantially dependent upon the other spouse for his or her maintenance and support” or (2) “substantially in need of maintenance and support from the other spouse.” N.C. Gen. Stat. § 50-16.1A(2).
Alimony: Alimony is “an order for payment for the support and maintenance of a spouse or former spouse, periodically or in a lump sum, for a specified or for an indefinite term, ordered in an action for divorce, whether absolute or from bed and board, or in an action for alimony without divorce…” G.S. § 50-16.1A(1). An award of alimony must be equitable after considering the relevant factors from G.S. § 50-6.3A(b) in “fairness to all parties.” Harris v. Harris, 188 N.C. App. 477, 481, 656 S.E.2d 316, 318 (2008).
Child Custody and Child Support
An action for child custody and child support calls on the court to make difficult determinations on the future of minor children. As such, North Carolina courts require separating parents to attend mandatory mediation to work out a custody and visitation schedule by consent. However, if the parties cannot agree after attending mediation, then it is necessary to litigate the case.
Child Custody: The best interest and welfare of the child is the paramount consideration in custody and visitation matters. Goodson v. Goodson, 32 N.C. App. 76, 231 S.E.2d 178 (1977). In making its custody and visitation decision, it is incumbent on the court to determine physical custody (the physical care and supervision of the child from day to day) and legal custody (the right and responsibility to make decisions with “important and long-term implications for a child’s best interest and welfare”). Hall v. Hall, 188 N.C. App. 527, 655 S.E.2d 90 (2008).
Child Support: Both parents are liable for the support of their children from the moment of the child’s birth. Upon separation and divorce, courts often use child support guidelines to determine an appropriate amount of baseline support each parent must provide for the minor child, taking into account the demonstrated and expected needs of the minor children and each parent’s income.
Criminal Conversation and Alienation of Affection
North Carolina courts still recognize common law torts of alienation of affection and criminal conversation. An action for alienation of affection accounts for wrongful acts which deprive a married person of the love and affection of his or her spouse. An action for criminal conversation simply means adultery. It gives effect to a married person’s fundamental right to exclusive sexual intercourse with his or her spouse while living as a marital union (referred to as the period of coverture).
The elements of the tort of alienation of affection are: (1) marriage between the plaintiff and his or her spouse, and a genuine love and affection existing between them; (2) the love and affection was alienated and destroyed; (3) the wrongful and malicious acts of the defendant cause the loss of love and alienation of affection; and (4) as a result of the alienation, the plaintiff suffered mental and emotional anguish and other suffering, loss of income or support, and loss of consortium.
The elements of the tort of criminal conversation are: (1) valid marriage between the plaintiff and his or her spouse; (2) sexual intercourse or adultery between the defendant and the plaintiff’s spouse during the period of coverture taking place within North Carolina; and (3) as a result of the criminal conversation, the plaintiff mental and emotional anguish and other suffering, loss of income or support, and loss of consortium. Horner v. Byrnette, 132 N.C. App. 323, 511 S.E.2d 342 (1999). An award of punitive damages often accompanies these torts. For example, in Horner, the jury awarded the plaintiff $1 in compensatory damages and $85,000 in punitive damages.