Separation Papers
Child Support

Daly Family Law

Your Attorneys for Today's Family

Why do I need a will?

The most important reason to have a will is to be able to direct how your property will be handled once you pass. Without a will, your property will pass according to the law of intestate succession in North Carolina, which may not be what you desire.

Can I purposely not provide for my spouse in my will?

While you can write a valid will excluding your spouse, he or she is entitled to petition the court for a spousal allowance from your estate in an amount of $30,000 from the personal property of your estate.  He or she is also entitled to petition the court for the spousal elective share, which is an amount of your estate based on the length of the marriage, ranging from 15% to 50% of the total net assets of your estate.

I have a will.  What is the advantage of also drafting a living trust document?

You can avoid fees and costs related to the probate of an estate, thus insuring that more of your money goes to your children or other heirs.  In probate, you must inventory and appraise property, pay debts, and pay taxes that may be due. A living trust document handles the distribution of the property outside of the probate process, and it keeps the terms and conditions private from public record. 

What are the grounds for a divorce in North Carolina?

There are only two grounds for a divorce in North Carolina: 1) When parties separated at least one year ago with the intention not to resume the marital relationship, and 2) When parties have lived apart for more than three years due to the incurable insanity of one of the spouses.

Is there a residence requirement for getting a divorce in North Carolina?

Yes, either the party filing for the divorce or the party being filed against must have been a North Carolina resident for six months preceding the filing of the action.

How long does it take to get a divorce?

Under normal circumstances for an absolute uncontested divorce, it takes us approximately seven weeks from the day we are retained to obtain the final judgment of divorce.

What is the difference between a contested and uncontested divorce?

Although defined by statue, generally an uncontested divorce refers to the complaint for absolute divorce that is sought after the parties have been separated for one or more years, and all marital issues have been resolved.  A contested divorce is when the parties cannot agree to settle the marital issues between themselves with a separation agreement and one of the parties files claims such as post-separation support, alimony, child custody, child support, equitable distribution of property, and attorney fees.

Custody and Visitation

How is child support determined? 
North Carolina has adopted the income-shares calculation for child support, so it is based on the amount of each party’s income.  Factors that affect the number include how many children the parties have, if either party either has other children in their care or has support obligations for any other children, who is paying for medical insurance for the children, and if there are any daycare costs who is paying for that.  Click here to calculate a child support obligation.

If parents share physical custody equally with each other, will one parent have to pay child support? 
If the parties are equally sharing overnights, the parties’ income is the same, and neither party is paying health insurance or daycare, and neither party has responsibility for other children at home or support obligation for other children, then yes.  Otherwise, it is going to depend on the exact number of overnights each parent has, along with consideration of the other above mentioned factors.​

Can a parent reduce the amount of child support they are paying? 
If there is a substantial change in circumstances since the entry of the last order, then the court order can be modified. One substantial change would be if the parent lost their job through no fault of their own.  Also, if a court order is over three years old, and the new child support obligation calculation results in a 15% difference from the current support obligation, then it is presumed to be a substantial change in circumstance.​

Who will be entitled to claim the children as exemptions for income tax purposes? 
When the child support guidelines are used to calculate child support, then it is presumed that the custodial parent shall be entitled to claim the children as exemptions.  If the parties have entered into a consent order or separation agreement concerning support, then they can agree to do otherwise.

Will the judge order a party to provide medical insurance for the benefit of the children?
When the child support guidelines are used to calculate child support, then it is presumed that the custodial parent shall be entitled to claim the children as exemptions.  If the parties have entered into a consent order or separation agreement concerning support, then they can agree to do otherwise.

Our attorneys will take the time during a free initial consultation to find out exactly what your situation is so that we can give the best possible advice for your individual situation.

Property Division

Frequently Asked Questions

If I am the sole beneficiary and the executor of my mother’s estate and there is not enough money to pay all the creditors, do I have to pay them from my own money?

No, as the executor you are required to use the decedent’s assets to satisfy the decedent’s debts.  You are not personally liable for any of the debts owed by your mother when she passed.

My father died leaving only a copy of his will, and the clerk in probate said that they must have the original. What can I do?

An attorney can file a petition for you seeking to probate a lost or stolen will.  It involves a hearing on the matter, but after a hearing in front of the clerk of court it could be determined that the copy would be probated.

There is not enough cash in the estate to pay all of the creditors, but there is real estate.  What needs to be done? 

If the real estate was devised to the estate you must sell the property.  If the real estate was not specifically devised to the estate, then you will first need to seek the help of an attorney who will prepare a petition to the court seeking permission to bring the real property back into the estate in order to sell the property to satisfy the creditors.

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How does the judge decide who should have primary physical custody?
The judge makes a decision based on what will be in the best interest of the minor child. The focus is on the parent who would best promote and develop the minor child’s welfare in areas such as health, education, residential stability, and moral development. 
Will my child get to tell the judge who he/she wants to live with?
A minor child of any age can express their desire, although greater weight may be given to the desires of an older child.  The judge will listen to the reasons behind the child’s wishes, and will want to know more about the everyday activities at each home.  In no instance does the child actually choose, but rather the judge makes the final determination.

If a parent does not return the children after visitation, what can be done? 

When a court order is in place, and a parent refuses to return children, a show cause order can be issued and a hearing will be heard on the violation of the court order.

I don’t like what the court order says. Can I go back to court and have another hearing? 

If the order is temporary, then it is possible to have a hearing on permanent custody.  If the order is a permanent order, then the party wanting to modify the order must show to the court that there has been a substantial change in circumstances that have occurred since the entry of the current order that have had an effect on the child.

What custody or visitation rights is the judge likely to order?
Judges believe that it is in the best interest of the minor child to spend as much time as possible with each parent.  Whenever possible, judges are awarding shared physical custody that could be either alternating weeks, or a rotating three, two, two-day schedule.

I have primary physical custody and want to move out of state.  Is that a problem? 
If the order addresses an anticipated move, then no.  If you can move out of state and still maintain the visitation schedule, then no. If the move will make the current visitation schedule impossible to comply with, then you must file a motion to modify the order.  Keep in mind that a motion to modify the order under these circumstances will open the door for the other parent to file a motion for primary custody.

How will major decisions affecting the children's health, welfare, and education be made?
These type of decisions are considered under the area of legal custody and Judges almost always grant joint legal custody so that the parents work together to come to a decision that is in the best interest of the minor child.

How does a parent terminate the other parent’s rights? 
A complaint for termination of parental rights must be filed, and the complaining parent must prove to the court that certain grounds as set forth in the general statutes exists. Upon the court finding that grounds do exist, the court must then determine whether terminating the parent’s rights is in the juvenile’s best interest.

Post Separation Support and Alimony

What is post-separation support?
Post separation support is the name for temporary alimony and is based on the financial needs of the parties, considering the parties' accustomed standard of living, the present employment income and other recurring earnings of each party from any source, their income earning abilities, the separate and marital debt service obligations, those expenses reasonably necessary to support each of the parties, and each party's respective legal obligations to support any other persons. Absent marital misconduct by the dependent spouse, that spouse is entitled to an award of post separation support if, based on consideration of the specific factors, the court finds that the resources of the dependent spouse are not adequate to meet his or her reasonable needs and the supporting spouse has the ability to pay.

How does a person obtain an award for alimony?

A spouse is entitled to alimony after a showing to the court that they were the dependent spouse, that the other spouse was the supporting spouse, and that an award of alimony is equitable after considering a list of specific factors.  Among those factors are the duration of the marriage, the relative needs of the spouses, the relative earnings and earning capacities of the parties.  The court will also consider marital misconduct.

If a spouse moved out and abandoned the other spouse, what rights does the innocent spouse have?

Abandonment is considered marital misconduct, and may be a factor for the court to consider when claims are made for post separation support or alimony. Other marital misconduct includes reckless spending, having an affair, and excessive use of drugs or alcohol. A lawyer can advise regarding which situations apply and how.

How much alimony will be awarded and for how long?

The amount and duration of alimony is left solely to the discretion of the trial judge, after considering relevant factors presented to the court. Alimony can be ordered for either a specified term or for an indefinite period.  It is important to have an attorney as an advocate in this matter to insure that the factors that the court considers when hearing a claim for alimony are factually presented.

Wills and Trusts

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What are separation papers? 

A Separation Agreement is commonly called separation papers and is the term that parties often refer to when they are contemplating separation.

Either the parties are still living together and on the verge of separation, or one of the parties has actually left the marital home, and they want a document to memorialize the separation date and to declare that they are legally separated. A Separation Agreement, while it does memorialize the separation date, does more than that. It is a contract entered into by the parties after negotiation and agreement on issues such as child custody, child support, division of property, post-separation support, and alimony.

How does a spouse become legally separated if the other spouse won’t leave the home?

A Separation Agreement is simply that, an agreement.  If the other party does not agree to sign the papers, then the person wanting to separate must either leave the home, or must file an action for Divorce from Bed and Board, alleging that marital misconduct was committed.  On Order for a Divorce from Bed and Board is a legal separation. The complaining party must prove to the court that the spouse (1) Abandoned his or her family; (2) Maliciously turned the other out of doors; (3) By cruel or barbarous treatment endangered the life of the other;  (4) Offered such indignities to the person of the other as to render his or her condition intolerable and life burdensome;  (5) Became an excessive user of alcohol or drugs so as to render the condition of the other spouse intolerable and the life of that spouse burdensome; or (6) Committed adultery.  Please consult with an attorney before moving out of the home without either a Separation Agreement, or before filing a Complaint for Divorce from Bed and Board, as other rights may be affected by simply moving out.

When can I start dating again?

Ideally it would be after the divorce. However, it would be legally safe to do so after the parties have entered into a Separation Agreement that includes a provision for both parties to live as if single.  Dating after separation but prior to resolving the issues between the parties can cause issues either in possible litigation, or in obtaining the other parties cooperation in entering into a separation agreement.

What can I do if my spouse won’t sign a Separation Agreement? 
There are only two ways to settle marital issues, and that is either by agreement, or by litigation.  You must file a Complaint for all of the appropriate claims, including Post Separation Support, Alimony, Child Custody, Child Support, and Equitable Distribution of Property.  Although filing the Complaint is the first step in litigation, it is not uncommon for the parties to subsequently negotiate a settlement through their attorneys.

If the other party won’t sign the Separation Agreement, is there an advantage to filing the Complaint first?
Neither party has an advantage in filing first, but after a certain length of time, one of the party’s may be at a disadvantage by failing to file.

Can one lawyer draft the Separation Agreement for both parties? 
Although an attorney will draft a Separation Agreement based on provisions provided by their own client, that attorney is exclusively representing their client, and does not represent the other party. While the other party may choose to proceed in signing the agreement, the other party is advised to consult with their own attorney to represent their rights in entering into the Separation Agreement.

Can I just use a Separation Agreement I found on the internet? 
It is not advisable to do so because the document may not address all of the issues that are particular to your situation.  A Separation Agreement is like car insurance, you don’t need it until you need it.  At the time an issue arises you could find out that issues such as the decision to incorporate the agreement into a court order, or the lack of provisions for tax ramifications will produce an unwelcome result.

Estate Administration / Probate

What is marital property?

Marital property is all real and personal property acquired during the course of a marriage existing on the date of separation. Debt is also marital property that the court will divide.

How will the marital property and marital debts be divided?

Generally the court will consider equal division as equitable.  North Carolina statute allows the court to consider a number of financial factors when making that division and using those factors can divide the property in an unequal amount.

Is a spouse’s 401(k) plan marital?

Yes, if it was acquired solely during the marriage. If it was started prior to the marriage, and contributions were made during the marriage, it is part separate property, and part marital property.

Does it matter if the cars or house or debt is titled in only one spouse’s name? 

No, title generally does not matter as long as the property or debt was acquired during the marriage.

Does my spouse have any claim on the money I inherited from my deceased father? 

It depends on if you kept the property separate and apart from marital funds, and did not do anything to make the property marital.

If my spouse gets the house and I am on the mortgage, does that remove me from the mortgage obligation? 

There is nothing a judge can do in a court order, nor is there anything that the parties can do in a Separation Agreement that will relieve a party of their existing obligation with a lender.  In a court order the Judge may order that the other party refinance the home in their own name, taking you off of the current mortgage, or the parties may agree to do the same in a Separation Agreement.