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Montgomery Family Law Montgomery Family Law
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FAQ

Answers to Family Law & Divorce Matters 

  • Frequently Asked Questions

    • What Are The Separation Laws in NC?
      The process of legal separation works differently from state to state and the same is true in North Carolina. Separation in North Carolina takes place on the date that a husband and wife move into separate residences with the intent to live continuously apart from one another. Often, before or during the separation process, couples will consult with divorce attorneys and they frequently hire attorneys to draft their Separation Agreement and Property Settlement. Within these documents spouses can outline how their property will be divided, how child custody will work, if any alimony will be paid, and what amount of child support will be paid. A separation agreement can contain all or some of these issues. The only issue that cannot be contained in a separation agreement is the divorce itself. In North Carolina, a divorce is available after one year and one day of separation. To find out even more about separation in North Carolina, click here.
    • What Are The Divorce Laws in NC?
      In North Carolina absolute divorces cannot be obtained prior to one year’sseparation. After you and your spouse have lived separate and apart for one year, without resuming the marital relationship, you may obtain an absolute divorce. Living in separate bedrooms at the same house will not suffice. Attempts at reconciliation marked by isolated instances of sexual intercourse will not automatically end the period of continuous separation. However, instances of sexual intercourse and nights spent together may cause a court to find that you have voluntarily renewed the marital relationship. Should a court so find, the twelve-month clock will be reset. An absolute divorce terminates your rights to post-separation support, alimony, and equitable distribution of marital property unless you have filed such a claim beforehand. Also, if you have been married for 10 years or longer it may improve your Social Security retirement benefits. You may want to delay your divorce until after your tenth anniversary. If a wife wishes to resume her maiden name, the name change can be entered as part of the divorce decree. Alternatively, a petition for name change can be made to the Clerk of Superior Court in the county where the divorce was entered, after the entry of divorce. Thus, it is not required that the name change be part of the divorce judgment.
    • What Is Alienation of Affection?
      The dictionary definition of the word "tort" is "a wrongful act resulting in an injury, loss, or damage, for which the injured party can bring civil action...."

      The tort of alienation of affections seeks damages against a third party who "alienates" the love and affections of one spouse from the other spouse. The wrongful and malicious acts by the third party must occur prior to the spouses separating. The lawsuit is usually brought by the innocent spouse against the guilty spouse's lover. An alienation of affections lawsuit, however, can be brought against any natural person for their wrongful and malicious acts. For example, a spouse's in-laws who advised the other spouse to leave the marriage can find themselves liable in an alienation of affections lawsuit. However, North Carolina bars an individual from commencing an alienation of affection cause of action against a business. Additionally, no cause of action is available by, or on behalf of, children. There is a three-year statute of limitations for alienation of affections claims. In other words, the innocent spouse must file his or her claim for alienation of affections within three years of the wrongful and malicious act or acts.
    • What Is the Legal Age To Marry In NC?
      North Carolina marriage laws place limits on who can marry based on the person's age and blood relationship to their prospective spouse. A minor between the ages of 16-18 may marry only if he or she receives written parental or guardian consent. Minors between the ages of 14-16 may lawfully marry if the prospective wife is pregnant, or has given birth, and intends to marry the father of her child. The marriage of minors between the ages of 14-16 must also be authorized by a district court judge. The court can authorize an underage marriage if the court determines that the minor is capable of assuming the responsibilities of marriage and that the marriage will be in the minor's best interests. A district court judge must consider the opinion of the minor’s parents. If the minor's parents oppose the marriage, then a presumption that it is not in the minor's best interests arises. Marriage laws in North Carolina hold that it is unlawful for any person under the age of 14 to marry. Additionally, individuals nearer in kin than first cousins generally cannot marry. Certain marriages between family members may even constitute a felony.
    • How Does Child Custody Work in NC?
      When a couple separates, decisions concerning child custody must be made. If parents are unable to resolve the issues of custody, visitation, or child support, the legal system authorizes a district court to effectuate resolution. North Carolina law directs district court judges to protect children until they reach maturity (usually age 18) by determining what is best for the child when parents cannot agree. Generally, the child and the parents will be better served by putting the child's welfare first and trying to decide what is best by agreement rather than by litigation. In an effort to avoid litigation and facilitate a decision by the parents, counties either offer or mandatemediation. However, when parents either cannot or will not agree between themselves, the legal system authorizes a District Court judge to decide the custody time that each parent will have with the child, whether the parents will share decision making authority over the child, and how much child support should be paid.
    • How Much Will I Pay In Child Support In NC?
      The reasonable needs of a child and a parent’s relative ability to pay must be taken into consideration when determining child support obligations. A non-custodial spouse's child support obligation continues until the child reaches age 18 except that if the child is otherwise emancipated, payment will terminate at that time. If the child is still in primary or secondary school at age 18, the court in its discretion will usually order child support payments to continue until the child graduates, ceases to attend school on a regular basis, fails to make satisfactory academic progress, or reaches age 20, whichever occurs first. A party by agreement may obligate himself or herself to make such payments beyond these time limits. There is no legal obligation of a supporting spouse to pay for college education expenses. This obligation arises only if the supporting spouse voluntarily agrees to assume it. See our child support calculator to determine your estimated child support payments.
    • Does North Carolina Recognize Common Law Marriage?
      Common law marriages, or marriages by consent that arise in our state, are not recognized by North Carolina as valid legal marriages. While it is impossible to contract a common law marriage in North Carolina, our state will recognize a common law marriage as a valid legal marriage if a couple entered into a common law marriage in a state that recognizes common law marriages, and if that couple later moves to North Carolina.
    • Can I Date After Separation?

      On the issue of whether a spouse should date after separation and beforedivorce, you should understand that post-separation dating can be used as evidence of adultery occurring during the marriage. If there was no illicit sexual conduct before your date of separation, then post-separation dating is not relevant to a claim for post-separation support or alimony. However, a paramour who stays overnight when your children are present can be grounds for denial of your custody or visitation.

      Dating after separation and before divorce may also have a serious negative impact on the settlement negotiations between you and your spouse. At best, your infidelity can cause your spouse hurt and embarrassment. At worst, it will provoke feelings of anger and revenge, which will greatly complicate settlement negotiations with your spouse.

      You should be forewarned that you will likely be asked under oath at a deposition or at trial about any dating or romantic relationships. To answer these questions falsely would constitute perjury. You may plead the Fifth Amendment privilege against self-incrimination under certain limited circumstances.

    • Do I Need Infidelity Proof in NC?

      Your spouse might file a heart-balm action for "alienation of affections" or "criminal conversation" seeking substantial money damages against your paramour. Criminal conversation actions are civil actions for adultery. These actions are based upon a third party’s sexual relations with you during the course of your marriage, but prior to you separating from your spouse. If your spouse is engaging in extra-marital affairs, then you are the wronged spouse and are in the position of filing an alienation of affections or criminal conversation lawsuit. If that is the case, you are well-advised to obtain proof of his or her affair through a private detective. Alienation of affections actions can be brought against any third party who wrongfully deprives one spouse of the love and affection of the other spouse. For example, these actions are sometimes brought against in-laws. However, you are barred from commencing a cause of action for alienation of affection against a business.

      If you have any questions, please contact us today.

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