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Divorce laws are enacted and interpreted by each of the respective states. This means your state and local family law court determines such things as divorce case filing and pleading procedures, spousal and child support payments, custodial rights of parents and the division of community property. Since laws get amended and new ones get made with some frequency, consult with an experienced family lawyer in your county for the most current status of the law. The family lawyer you choose should also be knowledgeable with the local courts and jury sentiment.

RESIDENCY REQUIREMENTS: To file for a divorce, either spouse must have been a resident of the State of North Carolina for at least six months next preceding the filing of the complaint. The divorce proceedings will be in the county where either party resides. [Based on North Carolina General Statutes, Chapter 50, Sections 50-3 and 50-8]

LEGAL GROUNDS FOR DIVORCE: North Carolina allows the following grounds for divorce:

* Living separate and apart for one year..

* Living separate and apart for three consecutive years, without cohabitation, by reason of the incurable insanity of one of them, the court may grant a decree of absolute divorce upon the petition of the sane spouse.

* The following are allowable fault grounds for divorce if either party: (1) Abandons his or her family; (2) Maliciously turns the other out of doors; (3) By cruel or barbarous treatment endangers the life of the other; (4) Offers indignities which render the other spouse's condition intolerable and life burdensome; (5) Becomes an excessive user of alcohol or drugs; or (6) Commits adultery.

LEGAL SEPARATION: North Carolina recognizes legal separation, provided, that the separation agreement must be in writing and acknowledged by both parties before a certifying officer. [Based on North Carolina General Statutes, Chapter 50, Section 52-10.1]

MEDIATION OR COUNSELING REQUIREMENTS: Whenever an action involves a contested issue as to the custody or visitation of a minor child, the matter, where there is a program established, shall be set for mediation of the unresolved issues as to custody and visitation before or concurrent with the setting of the matter for hearing unless the court waives mediation. [Based on North Carolina General Statutes, Chapter 50, Section 50-13.1]

PROPERTY DISTRIBUTION: North Carolina is an equitable distribution state. There shall be an equal division by using net value of marital property and net value of divisible property unless the court determines that an equal division is not equitable. The court shall consider all of the following factors when determining the property distribution:

* The income, property, and liabilities of each party;

* Any obligation for support arising out of a prior marriage.

* The duration of the marriage and the age and physical and mental health of both parties.

* The need of a parent with custody of children of the marriage to occupy or own the marital residence and to use or own its household effects.

* The expectation of pension, retirement, or other deferred compensation rights that are not marital property.

* Any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of such marital property by the party not having title, including joint efforts or expenditures and contributions and services, or lack thereof, as a spouse, parent, wage earner or homemaker.

* Any direct or indirect contribution made by one spouse to help educate or develop the career potential of the other spouse.

* Any direct contribution to an increase in value of separate property which occurs during the course of the marriage.

* The tax consequences to each party that would have been incurred if the marital and divisible property had been sold or liquidated on the date of valuation.

* Acts of either party to maintain, preserve, develop, or expand; or to waste, neglect, devalue or convert the marital property or divisible property, or both, during the period after separation of the parties and before the time of distribution.

* Any other factor which the court finds to be just and proper.

"Separate property" means all real and personal property acquired by a spouse before marriage or acquired by a spouse by bequest, devise, descent, or gift during the course of the marriage. [Based on North Carolina General Statutes, Chapter 50, Section 50-16.20]

ALIMONY / MAINTENANCE / SPOUSAL SUPPORT: Either party may petition for alimony. The court shall exercise its discretion in determining the amount, duration, and manner of payment of alimony. The duration of the award may be for a specified or for an indefinite term. In determining the amount, duration, and manner of payment of alimony, the court shall consider all relevant factors, including:

1. The marital misconduct of either of the spouses. Nothing herein shall prevent a court from considering incidents of post date-of-separation marital misconduct as corroborating evidence supporting other evidence that marital misconduct occurred during the marriage and prior to date of separation;

2. The relative earnings and earning capacities of the spouses;

3. The ages and the physical, mental, and emotional conditions of the spouses;

4. The amount and sources of earned and unearned income of both spouses, including, but not limited to, earnings, dividends, and benefits such as medical, retirement, insurance, social security, or others;

5. The duration of the marriage;

6. The contribution by one spouse to the education, training, or increased earning power of the other spouse;

7. The extent to which the earning power, expenses, or financial obligations of a spouse will be affected by reason of serving as the custodian of a minor child;

8. The standard of living of the spouses established during the marriage;

9. The relative education of the spouses and the time necessary to acquire sufficient education or training to enable the spouse seeking alimony to find employment to meet his or her reasonable economic needs;

10. The relative assets and liabilities of the spouses and the relative debt service requirements of the spouses, including legal obligations of support;

11. The property brought to the marriage by either spouse;

12. The contribution of a spouse as homemaker;

13. The relative needs of the spouses;

14. Tax ramifications of the alimony award;

15. Any other factor relating to the economic circumstances of the parties that the court finds to be just and proper.

16. The fact that income received by either party was previously considered by the court in determining the value of a marital or divisible asset in an equitable distribution of the parties' marital or divisible property. [Based on North Carolina General Statutes, Chapter 50, Section 50-16.3A]

SPOUSE'S NAME: A woman, upon application to the clerk of court, may change her name to (1) Her maiden name; or (2) The surname of a prior deceased husband; or (3) The surname of a prior living husband if she has children who have that husband's surname. A man whose marriage is dissolved by decree of absolute divorce may, upon application to the clerk of court of the county in which he resides or where the divorce was granted setting forth his intention to do so, change the surname he took upon marriage to his premarriage surname. [Based on North Carolina General Statutes, Chapter 50, Section 50-12]

CHILD CUSTODY: In contested custody cases, custody placement is determined by the best interests of the child. In making the determination, the court shall consider all relevant factors including acts of domestic violence between the parties, the safety of the child, and the safety of either party from domestic violence by the other party and shall make findings accordingly. Between the mother and father, whether natural or adoptive, no presumption shall apply as to who will better promote the interest and welfare of the child. Joint custody to the parents shall be considered upon the request of either parent. If the court finds that domestic violence has occurred, the court shall enter such orders that best protect the children and party who were the victims of domestic violence. If a party is absent or relocates with or without the children because of an act of domestic violence, the absence or relocation shall not be a factor that weighs against the party in determining custody or visitation. [Based on North Carolina General Statutes, Chapter 50, Section 50-13.2]

NORTH CAROLINA CHILD SUPPORT LAWS: The court shall determine the amount of child support payments by applying the presumptive guidelines. If, after considering the evidence, the Court finds by the greater weight of the evidence that the application of the guidelines would not meet or would exceed the reasonable needs of the child considering the relative ability of each parent to provide support or would be otherwise unjust or inappropriate the Court may vary from the guidelines.

HOW TO ENFORCE CHILD SUPPORT IN NORTH CAROLINA – THE FEDERAL OPTION

Federal Options Enforcement (CSE) Program is a federal/state/local effort to locate parents, their employers, and/or their assets; establish paternity if necessary; and establish and enforce child support orders. The federal role is to provide funding, issue policies, ensure that federal requirements are met, and interact with other federal agencies that help support the CSE program.

How and where do I apply?

In most states, CSE offices are listed under the human services agency in the local government section of the telephone directory. If there is not a separate listing, the human services agency information operator should be able to give you the number. State CSE agencies are listed at the end of this brochure; they also can provide telephone numbers for local offices.

Call your Child Support Enforcement office to learn how to apply for enforcement services and what documents (birth certificates, financial statements, etc.) you should provide.

What are the steps to collecting support?

The first step, if a child was born out of wedlock, is to establish paternity - or make a legal determination of who fathered the child. Many men will voluntarily acknowledge paternity. Either parent can request a blood test in contested paternity cases. Your caseworker will help you to establish paternity for your child.

Establishing the obligation is the next step. The fair amount of child support that the non-custodial parent should pay is determined according to state guidelines. Your CSE office will be able to tell you how support award amounts are set in your state. Your CSE office can also request medical support for your child.

The last step is enforcement of the child support order. The CSE office can help with collecting the money due no matter where the non-custodial parent lives.

At any of these steps, the CSE office may need to know where the non-custodial parent is living or where he/she is working. When a parent has disappeared, it is usually possible for the CSE office to find him/her with the help of state agencies, such as the Department of Motor Vehicles, or the Federal Parent Locator Service. Your caseworker can tell you what information is needed to find an absent parent or his/her employer.

The most successful way to collect child support is by direct withholding from the obligated parent's paycheck. Most child support orders require the employer to withhold the money that is ordered for child support and send it to the CSE office. Your Child Support Enforcement office can tell you about this procedure.

Federal and State Income Tax refunds may be withheld to collect unpaid child support. States also have laws, which allow them to use: liens on real and personal property; orders to withhold and deliver property; or seizure and sale of property with the proceeds applied to the support debt. Many states routinely report child support debts to credit bureaus and smart parents are bringing their payments current so that their credit won't be affected.

For More Information write for the 2008 Handbook on Child Support Enforcement by contacting:

ACF OCSE National Reference Center

370 L'Enfant Promenade, S.W.

4th Floor Washington, DC 20447

(202) 401-9383

IS A LAWYER NECESSARY FOR MY CASE?

If the marriage was less then a year, you have no children, if there is no real estate, and if a marital settlement has been reached, the spouses may and should consider a fast and simplified divorce solution.

No person seeking a divorce is actually required by law to use an attorney. If a person does plan to represent themselves (not recommended) during the proceedings, they should not expect the court clerks, bailiff and/or judge to assist them or provide legal advice in any way. Most spouses do however, at least at some point, consult with an attorney before proceeding with doing the divorce themselves.

Under most circumstances, a lawyer is ethically prohibited from representing both parties in a case. This is called a legal conflict of interest. Lawyers should only represent one party. Notwithstanding, in practice many people choose to have just one lawyer handle most of the paperwork such as the legal documents, including a separation agreement. In this situation, you must keep in mind that the lawyer who drafted the documents should and usually is only be representing one party. In some states, they follow a collaborative divorce process in which the mediator/lawyer works with both parties to achieve one common goal: to reach agreement on settlement of the issues and to have that agreement reduced to a writing and then into a court order.

Most lawyers do not charge a flat fee for a divorce unless the divorce is very simple, and both parties have agreed to the division of property and custodial issues at the outset. Instead, a lawyer will usually request a cash retainer from the client, not unlike a security deposit and charge for the lawyer’s time as the case moves forward. The amount of lawyer fees is one very important factor to consider. However you should also take into account the attorney’s legal experience and the complexity of the case. Lawyers are prohibited from charging a contingent fee for a divorce. Once a fee arrangement has been made, the lawyer is in most cases must prepare a written contract reflecting the agreement if full.

If there is a great disparity of income with regards to payment of the attorney fees, a judge may determine that one person should pay for the other person’s attorney fees. Most often however, a judge determines that each party has the ability and should to pay his or her own fees.

CHOOSING THE RIGHT FAMILY LAWYER

If you have chosen to go with a lawyer you have a very important choice to make.

You could think of the process of choosing a lawyer like any other significant purchase. The same kind of careful consideration you put into a major purchase is not unlike the kinds of considerations you need to make when you are looking for the right divorce and family lawyer.

Before you start, you’ll need to choose what qualities you want in your family lawyer. There are a number of qualities that you should expect your lawyer to have. These basic qualities include:

Good standing with their state bar: In other words, the bar association which licenses the attorneys in your state considers this lawyer is fit to practice law.

No disciplinary sanctions: A disciplinary sanction is an action taken against a lawyer by the state agency that regulates lawyers. If a lawyer has a sanction, be sure to investigate, taking into account the severity of the sanction and how long ago it occurred. A sanction can be a minor reprimand, or it can be a very serious punishment like suspension or disbarment from practicing law.

Experience with cases like yours: Most lawyers concentrate in a few areas of the law such as adoption and mediation. Once you know what these areas are, it’s easier to find lawyers with the experience and skills that are relevant to your situation.

Good communication skills: Regardless of your family law case issues, you want someone who keeps you informed and stays in touch, every step of the way. Legal matters can be confusing and your attorney is your advocate and guide. Don’t settle for anything less.

Once you’ve covered the basics, you may think of other qualities you’d like your lawyer to have. A few questions to consider:

Is this lawyer’s office convenient to your home or office?

How much does the lawyer charge?

GET CURRENT WITH THE 2008 FAMILY LAW CODE OF NORTH CAROLINA

http://www.ncleg.net/gascripts/Statutes/StatutesTOC.pl?0050