Durham Family Law Specialist, Barri Payne

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Family Law Articles

Is Modification Possible?

Can my custody or child support terms be changed later? Yes, if the terms were set forth in a court order they can be changed later upon a showing that there has been a substantial change in circumstances since the date of the last order affecting the welfare of the child(ren). If the terms were in an agreement, they can be changed by an amendment or subsequent agreement or by filing an action with the Court to have the Court enter an order setting forth a different child custody schedule or child support amount.

Are Retirement Accounts Marital Property?

Are retirement accounts considered marital property and can they be divided by the Court? Yes, if they were earned during the marriage they are marital property. This is true even if the spouse did not make any contributions themselves, and all funds were contributed by the employer. If the employment was during the marriage, the associated retirement funds will be marital. The Court can divide retirement accounts such as 401-K’s and pensions by Qualified Domestic Relations Orders (QDRO’s) which direct the Plan Administrator how to divide the account. Whenever possible, however, the Court tries to divide assets “in kind” and distribute entire accounts to each party in an equitable way so that accounts may not have to be segregated.

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...

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