GREENSBORO, N.C. — For the 17th year, the North Carolina Bar Association and Foundation ask lawyers from all over the state to volunteer for a free call-in event. 4All Statewide Service Day is your chance to talk one-on-one with a lawyer to get the legal information you need to know about your situation. You call and can ask a lawyer about almost anything! Attorneys specializing in family law, employment, housing issues, wills, probate, and taxes will be taking calls all day.
4ALL Statewide Service Day
Friday, March 1, 2024
10 a.m.- 7 p.m.
Phone Line: 336-355-6262
Before Friday, we spoke to two attorneys who specialize in family law. Afi Johnson-Parris is with Fox Rothschild LLP and Manisha Patel is a certified family financial mediator and state bar councilor.
They answered questions about common misconceptions and the type of cases they experience most often.
How can I get a legal separation?
Afi: In order to be legally separated in NC, you only need to live separate and apart without the intent to reconcile. This means living in two separate residences, not different parts of the same house. There is no court filing or document required, however, it is often wise to document the separation with a written Separation Agreement.
What happens if my spouse won't give me a divorce?
Afi: In North Carolina, to obtain a divorce you have to be separated from your spouse for one year, and either you or your spouse have lived here six months before you file. Your spouse doesn't have to consent to the divorce. They just have to receive notice that you've filed through the service of process.
If both parents have 50/50 custody, does either parent pay child support?
Afi: It depends, but in most cases there will still be child support under the North Carolina Child Support Guidelines. In addition to the time spent with each parent, the Guidelines consider before tax income, other children the parents may have, medical insurance premiums, and work-related childcare. These things are rarely equal for each parent, so the Guidelines will balance these factors between the parents and typically award some support paid by one parent to the other.
Why should I care and vote for judges?
Afi: The experience of all judges isn't created equal. The only requirement that qualifies them is that they are a licensed attorney. Judges make decisions that impact the lives of everyone either directly or through people you know. Consider what it would mean for a stranger, with no special training in parenting, to tell you how to raise your child. That's exactly what happens in a custody case. Please look at who is running and vote.
If my spouse and I keep all of our accounts separate do we need equitable distribution?
Afi: It depends. The question isn't just whose name is on the property, but when and how you got the property. Equitable distribution divides all marital property which is everything you own and everything you owe between the date of marriage and the date of separation. This includes things that have only one spouse's name, like a retirement account. Most things are marital and need to be divided except for an inheritance or gift from someone other than your spouse.
If we are legally separated for that one year, am I automatically divorced?
Manish: Unfortunately, no- you will have to file a lawsuit for absolute divorce and follow the rules for civil procedure to either have a divorce granted by the clerk of the superior court or schedule a hearing in front of a Judge.
How can I get a divorce if I don't know where my spouse lives?
Manish: After you have met the requirements of legal separation for at least one year, then you have to file for divorce with the Courts. That lawsuit will have to be served personally on your soon-to-be ex-spouse. There are a number of ways to try and serve them (Sherriff, FedEx, Private Investigator/Process Server). If none of these options work, THEN you are allowed to publish a notice in a local newspaper and the other person has 45 days (instead of the regular 30) to respond. If they do not in that much time, then you can schedule the divorce by a judge.
If you can't find your separated spouse, you have to go by their last known domicile/residence or where they are most likely to be living (i.e. with a relative or friend or workplace).
Do I have to file a lawsuit to resolve all of these issues arising out of my marriage or with the other parent of my child(ren)?
Manisha: No, a lawsuit is not required. If your separated spouse or co-parent is open to meeting and discussing these concerns, you can put everything into a written contract we call a Separation Agreement and/or Parenting Plan.
Collaborative family law is a great way for people to save themselves from the time, mental, emotional, and financial expense of traditional litigation through the court system. As long as both people are willing to "come to the table" to discuss these issues, collaboratively trained attorneys and neutrals (like mediators or financial/child welfare specialists) can help people work together to create a resolution of marital issues to ensure a positive long term plan for dividing property, spousal and child support, and child custody. Oftentimes, this process has caveats that you agree not to file a lawsuit and everything is 100%private and can't be used in court if you choose to exit the collaborative law process.
Why do I have to pay child support if I don't even have any visitation rights?
Manisha: Child support in North Carolina is based on an income-shares model of the natural/bio parents. The only connection of custody to child support is the selection of which formula to use to calculate child support based on the North Carolina Child Support Guidelines and the actual number of overnights each parent has regardless of what a custody order or parenting plan states. It is important to always keep a log of overnights with each parent if they decide to deviate from their private parenting plan Agreement or a Court Custody Order.
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