Durham Family Law Specialist, Barri Payne

I am here to help. Call now.


Family Law Articles

Can Children Decide Where They Live?

When can kids decide on their own which parent they want to live with? There is no set age in N.C. as to when this can occur. It is in the Judge’s discretion whether to speak to children and give them any input into the determination. Judges vary as to what age children they will speak to. Some will speak to a child as young as 10 or 11 while others are unwilling to talk to children until they are 15 or 16. It will only be one piece of the evidence that the Court considers and will not be determinative by itself. The Court also will not speak to a child in chambers unless both parents agree.

What if my spouse won’t move?

Can the Court force my spouse to move out of the home? In certain circumstances this can be accomplished particularly if there is domestic violence or substance abuse occurring. Contact us to discuss this further. Sometimes an amicable agreement to separate can be reached once you hire counsel who can help you assess whether mediation is possible or whether serving your spouse with a proposed separation agreement may help achieve separation as well.

How do Courts Determine Child Custody?

What does the Court look at to determine child custody? The Court can consider anything which may be relevant to what custodial schedule is in the child’s best interest. These issues often include: How the caregiving responsibilities were shared during the marriage and since separation; The age, maturity level and special needs of the children; The parties work schedules and lifestyles; The distance between the parent’s homes and the suitability of each home; The ability of each parent to meet the children’s needs and participate in the child’s education and health care; The effectiveness of the communication between the parents; The custodial schedule which has been exercised since separation; The children’s wishes (if of suitable age and discretion); and The occurrence of any domestic violence or substance abuse.

What do Separation Agreements Cover?

What issues can we cover in a Separation Agreement? You can address all issues arising from your marriage and separation except you cannot contract about getting an absolute divorce. You can agree on child custody and visitation, child support, alimony, the division of all your marital assets and debts from large assets down to household furniture, and address tax issues, such as who will claim the children as dependents, and whether you will file or separate tax returns that year and following years.

Am I Entitled to Alimony?

What is alimony and can I get it? Alimony is spousal support, i.e. support for either spouse over and above child support. You may be entitled to alimony if you have been the dependent spouse during the marriage, have not committed adultery, have been supported by your husband or wife, and continue to need support from them to meet your reasonable living expenses. The Court will require you to provide evidence of your income and monthly expenses and find your spouse has an ability to pay support after meeting their own reasonable monthly expenses. The duration of the marriage will be very relevant to the Court’s determination of how long the alimony payments should continue. For the amount, the Court will balance your need (after application of your own income), with your spouse’s disposable income.

The Year Long Separation

Can my spouse and I agree we have been separated for over a year? In other words, if we agree, does it matter when one of us actually moves out of the house? No, you cannot “agree” on a separation date. When you file the Complaint you will have to be sworn under oath and sign a verification saying the statements are true to the best of your knowledge so to say you have been separated over one year when that is not the case, is committing perjury before the Court. It truly has to be a year of living in separate physical residences. It also is not enough to move to separate bedrooms but remain in the same home.

How long must I be separated before I can file for divorce?

In N.C. you have to live physically separate and apart for one year before filing for divorce. You can work to resolve all other issues, such as child custody, child or spousal support, equitable distribution of property, etc. either by agreement or in some instances through the Court prior to the divorce being filed, but the actual divorce filing has to wait until 12 months after the physical separation began.

Social Media and Divorce

Cautions on the Use of Social Media for Divorcing Spouses and Parties in Child Custody Proceedings As a family law practitioner I feel compelled to offer some advice concerning the use of social media to those of you who may be separating or beginning family law litigation. I have seen evidence from social media used in Court multiple times in the last year or so. Consider these warnings before you post that next picture or comment online: This probably goes without saying, but I have seen several cases in the last couple years in which problems leading to separation were exacerbated, if not caused, by one spouse using Facebook or some other online resource to connect with an old “flame” or new “friends” of the opposite sex. Enough said. Be careful when posting pictures of yourself “socializing” with friends. Pictures downloaded from Facebook are routinely being offered as evidence in...

How Much is Your Pet Worth To You?

Reflections on a Recent NC Appellate Case Should we be able to recover monetary damages for the loss of our pet? If so, how is the pet’s value determined? Does the pet have intrinsic value beyond the cost of purchase? What about recovery for non-economic damages such as loss of enjoyment, companionship, emotional distress, or pain and suffering? On February 21, 2012 the NC Court of Appeals held that in North Carolina we cannot recover damages for loss of pets beyond actual out-of-pocket expenses (such as the cost of replacement value or veterinarian expenses). The case is Nancy and Herbert Shera v. NC State University Veterinary Teaching Hospital. The Sheras’ Jack Russell terrier Laci died as a result of veterinary malpractice. NCSU admitted the error and took responsibility for Laci’s death. The matter of damages was heard by the N.C. Industrial Commission who awarded $2,755 to the Sheras for their...

Is Mediation Negotiation Admissible?

If my case goes to trial, will the Judge hear about what we discussed at the mediation? No. The negotiations that occur as part of a mediation are confidential and cannot be disclosed at trial to a Judge or jury. Neither party may subpoena the mediator and require the mediator’s testimony or notes.

Contact Barri Payne