January: Annually, this month shows a marked increase in the number of people seeking information about filing for divorce. The decision to divorce is never easy and often the spouses involved have a confusing mixture of emotions. Despite the number of concerns that may cross your mind when going through separation and divorce, the 3 top issues routinely boil down to: Property, Spousal Support or Alimony, and Custody.
Property: Regardless of the length of your marriage, it is likely that you and your spouse have incurred debts or bought property. In North Carolina, generally any asset obtained or debt incurred by either spouse between the date of marriage and the date of separation is subject to division. The process of property division is referred to as Equitable Distribution. Anything defined as “marital property” or “marital debt” is generally divided equally regardless of the title owner. For example, if the retirement account is titled in one party’s name, it can still be considered “marital property” and subject to division. There are a few exceptions as to what can be defined as marital property, such as an inheritance. However, even exceptions have exceptions. Therefore, be sure to review each asset and debt with a divorce attorney to determine what is included in the marital estate.
Spousal Support: This financial support is also known as Alimony, Spousal Maintenance and other terms depending on your state. Ultimately, it is financial support provided for the benefit of a spouse. This type of support is in contrast to financial support for the benefit of a minor child (which is referred to as Child Support and is addressed alongside Child Custody).
In North Carolina, there are two forms of spousal support: Post-separation Support and Alimony. Unfortunately there is no calculator in North Carolina that predicts exactly how much post-separation support or alimony should be paid. Rather, the Court will take into consideration various factors to include each spouse’s standard of living, income, ability to earn an income, and necessary expenses. Adultery or other forms of marital misconduct are also factors that are considered in spousal support cases.
Child Custody: How much parenting time will each parent have with the children and which parent will make decisions regarding each child’s health and welfare? These are just some of the questions we face concerning your separation and divorce as it relates to the children. The basics of custody boil down to physical custody and legal custody. Physical Custody refers to which parent will physically have the child in a scheduled manner. It is important to remember that parents can always adjust a parenting arrangement to accommodate the specific circumstances of the parents and the child at any given time; however, a parenting schedule by formal Agreement or Court Order should be created as a last resort to ensure the minor child has valuable time with both parents. Legal Child Custody refers to which parent is able to make decisions for the child’s welfare, such as which school the child will attend or which doctor will treat the child.
In contrast to spousal support, there is a calculator to compute Child Support in North Carolina. The main factors included in this calculator include the number of overnights each parent has with the child, the incomes of each parent, insurance premium payments for the benefit of the child, work-related childcare costs, and any extraordinary expenses that may be incurred for the child such as tuition, tutors, and the like.
To get to the bottom line of a property distribution, to figure out the numbers as it relates to financial support, and to obtain the right parenting schedule for your family, an experienced family law attorney is your best ally.
Theresa Viera is an attorney in the family law practice group at Sodoma Law, P.C., based in Charlotte, NC. Ms. Viera is Chair of the Family Law Section and member of the Hispanic-Latino Lawyers Bar of the Mecklenburg County Bar Association.