Since the United States Supreme Court decision Obergefell vs Hodges in 2015, all individuals in the United States have a right to marry whomever they want. All individuals also have a right to separate and divorce from their spouse.
Here’s a quick primer if you’re contemplating separation and divorce in North Carolina. By no means does it contain all the information you might need, but it’s a beneficial starting point to help you understand your next steps.
In North Carolina, you must be living “separate and apart” from each other, which means someone must move out of the marital residence. Under most circumstances, you cannot force your spouse to leave the marital residence. However, if you have experienced domestic violence, you can seek a domestic violence protective order. That document can award the marital residence to the victim and order the abuser to vacate the residence.
Once separated, you can proceed forward with your claims. Those claims may include child custody and child support if you have children, equitable distribution and alimony.
With regards to child custody, the court will determine what is in the best interests of the child when deciding how much time the child will spend with each parent. Typically, day-to-day decisions are made by whichever parent has the child, but decisions with more significance, such as education or healthcare, must be made by a designated parent or both parents jointly.
If your combined income is $360,000 or less per year, child support will be based upon the North Carolina Child Support Guidelines. If your combined income is greater than $360,000, child support will be based upon the child’s reasonable needs and expenses. The Court will also consider who is maintaining health insurance for the child and how uninsured medical expenses will be paid.
Alimony is financial support for the dependent spouse. A dependent spouse is the spouse who made less money during the marriage. The amount awarded is based upon multiple factors, including what are the dependent spouse’s reasonable needs and expenses, as well as the standard of living during the marriage. There are also fault factors that the Court can consider when determining whether to award alimony or not. The big fault factor is adultery. If the dependent spouse has committed adultery during the marriage and prior to the date of separation, that person is automatically barred from receiving alimony.
Lastly, there is the potential claim of equitable distribution, which is dividing the assets and liabilities that were acquired during the marriage and prior to the date of separation. It does not matter how the assets are titled (i.e., jointly or individually) so long as they were acquired after the date of marriage and prior to the date of separation.
But wait! There are several exceptions to this rule. First, any assets that you owned prior to the date of marriage typically remain your separate property unless you co-mingle funds during the marriage. Second, gifts from third parties are considered your separate property and not subject to division. Third, inheritances during the marriage are considered your separate property and not subject to division so long as there is no co-mingling of funds.
The actual divorce happens after you have been separated for at least 365 days. Only after you have been separated a full year can either party file for divorce. From that point, the divorce process normally takes about three months from start to finish, concluding with the judge granting a divorce judgment.
Obviously, each case is different. If you’re considering a separation, consult with an attorney licensed by the State of North Carolina who can more thoroughly advise you about how the law applies to the specific facts of your case.
Family law attorney K. Mitchell Kelling with Horack Talley in Charlotte is certified as a family law specialist by the North Carolina State Bar Board of Legal Specialization. Reach her at email@example.com.