Family Law

Prenuptial and Postnuptial Agreements

A prenuptial agreement is a contract signed by two parties prior to marriage.  The content within the agreement can vary, but most commonly includes provisions for the division of property should the two signing parties separate or divorce and any rights to spousal support during or after the dissolution of marriage. North Carolina prenuptial agreements  require specifics such as the following to be valid: 

1. The agreement must be in writing;
2. The agreement must be executed voluntarily by both parties;
3. The agreement must have full disclosure and/or is fair at the time of execution;
4. The agreement must be reasonable;
5. The agreement must be executed by both signing parties, and acknowledged before a notary public.

A postnuptial agreement is another contract, similar to a prenuptial, that is voluntarily signed by two parties, except it is signed during a marriage.  Two important things to consider with this form of contract are full and fair disclosure and separate and independent counsel. Many things can be included in a postnuptial agreement, such as:

1. A list of all assets, liabilities, incomes, and expectations of gifts and inheritances;
2. Description of how post-marital debts will be paid;
3. What happens to post-marital property in reference to appreciation, gains, income, rentals, dividends and proceeds of such property, in the event of death or divorce;
4. What happens to post-marital property in the event of death or divorce;
5. Decision on who, or if both, will own marital residence and secondary residences in the event of death or divorce;
6. Specify the status of gifts, inheritances, and trusts either spouse receives or benefits from, whether it be before or after the marriage;
7. Clarify what will happen to each type of property, whether it is individually or jointly owned, including real estate, artwork, and jewelry;
8. Alimony, maintenance, or spousal support;
9. Death benefits and stating what you will provide in your will;
10. Decision on medical, disability, and life or long-term care insurance coverage.

Separation and Property Settlement Agreements

A separation and property settlement agreement is a contract between husband and wife in which they can resolve matters such as property division, debts, custody, child support, and spousal support when they are separating from each other. A separation and property settlement agreement can be an agreement resolving all issues that arose from the marriage.  This kind of contract is invalid unless signed by both parties and the document is notarized.  It is very important to seek legal advice before separating from your spouse to protect your interests.  If you are presented with any form of agreement to sign, you should consult your attorney right away, for it is important that you do not overlook any important rights you might be waiving. If it is discussed between you and your spouse to separate and an agreement has been reached regarding division of properties and addressing other issues, the agreement should be prepared by an attorney.

Equitable Distribution

Equitable Distribution in the state of North Carolina is recognized as the process of distributing marital assets and marital debt.  The steps involved in the equitable distribution of property include: 

1. Determination of what property will be part of the distribution;
2. Valuation of the property that is part of the distribution;
3. Actual distribution of the property.

In North Carolina, the equitable distribution laws can be complex and should be navigated by an attorney.  Marital property and separate property have very distinct characteristics.  Separate property can include things such as properties bought or acquired before the marriage, property inherited by one spouse or was a gift to one spouse, and property that the spouses agreed to exclude from marital property such as listed within a prenuptial agreement.

Separate property can occasionally become marital property through a process in which the non-marital property is mixed together with the marital property and both become indistinguishable from the other.  Properties have to be valued for equitable distribution purposes and the key issues to this are the dates used and evidence of value.  The dates used to determine value can be very important because the value of properties and assets have a tendency to change over time. If both parties agree on the value of properties and assets, the court will accept those values, but if the parties cannot agree, the court must be given evidence of valuation to render a final decision.  There should 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.  A party may request an unequal division.  The court will examine different factors, including:  the income, property, and liabilities of each party at the time of distribution; the duration of the marriage; the age and physical and mental health of both parties; whether one parent needs to stay in the marital home with the child(ren); and other factors designated per statute.

To get the information that you need, please schedule an initial consultation today at my Asheville office. Contact Hooks Law, P.C., online or by calling 828.333.2630 .

Alimony

Alimony is payment for the support and maintenance of a spouse, either in a lump sum or on a continuing basis. It is a general rule that the ‘dependent spouse’ is paid by the ‘supporting spouse’ based on economic needs.  The amount can be determined in litigation, or it can be settled in the form of a separation agreement. There are many factors used to determine alimony:

1. Marital misconduct of either spouse;
2. Relative earnings and earning capacities of each spouse;
3. Ages and physical, mental, and emotional condition of each spouse;
4. Amount and sources of earned and unearned income of both spouses, which includes earnings, dividends, medical benefits, retirement benefits, insurance, and social security benefits;
5. Duration of the marriage;
6. Contribution by one spouse to education, training, or increased earning power of the other;
7. Extent to which the earning power, expenses, or financial obligations of a spouse will be affected by reason of serving as the custodial parent of a minor child;
8. Standard of living established during the marriage;
9. Relative education of each spouse and the time necessary to acquire sufficient education or special training to enable the spouse seeking alimony to find employment or income to meet his or her reasonable economic needs;
10. Relative assets and liabilities of each spouse and relative debt of each, including legal obligations of support;
11. Property brought into the marriage by either spouse;
12. Contribution of a spouse as a homemaker;
13. Relative needs of each spouse;
14. Federal, State, and local tax ramifications of the alimony award;
15. Any other factors relating to the economic circumstances of either of the parties that the court finds to be just and proper.

Alimony is typically long term if paid on a continual basis, whereas post separation support is temporary.

Post Separation Support

Post separation support enables the financially dependent spouse to meet his or her reasonable needs, pending an alimony award or denial.  The court must consider many economic factors, such as financial needs of the dependent spouse and the supporting spouse's ability to pay.  The court's award is based on the financial needs of the parties, considering the marital standard of living, the present employment income and other recurring earnings of either spouse, income earning abilities, other support obligations,

A post separation support order or alimony award can be terminated if the parties resume marital relations, the dependent spouse remarries or cohabits with another adult in private relationship, or if the dependent or supporting spouse dies.  Marital misconduct plays an important role in the denial or award of postseparation support and/or alimony.

Alimony is denied to the dependent spouse if there is any evidence of “illicit sexual behavior” during the marriage and prior to or on the date of separation.  If the supporting spouse  engaged in “illicit sexual behavior” during the marriage and prior to or on the date of separation, the court shall award that alimony be paid to the dependent spouse.  For postseparation support, the judge must consider marital misconduct of the dependent spouse.  Illicit sexual behavior is defined in North Carolina as acts of sexual or deviate sexual intercourse voluntarily engaged in by a spouse with someone other than the other spouse.  A defense to a claim that one spouse engaged in illicit sexual behavior may exist; therefore, consultation with an attorney is vital.

To get the information that you need, please schedule an initial consultation today at my Asheville office. Contact Hooks Law, P.C., online or by calling 828-333-2630 .

Child Support

Child support is defined as the ongoing obligation for a periodic payment made from the non-custodial to the custodial parent, caregiver, or guardian, specifically for the care and support of children born of a relationship or marriage that has been terminated.  The theory behind child support is based on a policy that both parents are obligated to pay for the support of their children whether or not they are living with both biological parents. One parent may have primary custody of the children, where the non-custodial parent may be given visitation rights. In such cases, the non-custodial parent is obligated to pay a portion of costs involved in raising the children.  Even if the paying parent is obligated to make regular payments, he or she may not have any authority or decision-making in the child’s upbringing.  It is not necessary for the two parents to be married.  

The basic child support obligation can be established in accordance to North Carolina state law by the following factors:

1. The income of both of the parents;
2. Any already existing child support awards;
3. Any other children already living with either parent;
4. Payments of any work-related child care costs;
5. Health insurance premium costs;
6. And occasionally any other extraordinary expenses pertaining to the child.

A primary custodial parent is recognized as having care of the child for more than 243 days per year.  When the parties share physical custody, they each must have the child for at least 123 overnight stays throughout one year. Split custody is also considered, and is when there is more than one child involved and each parent has primary physical custody of at least one child each.  In North Carolina, child support is established by the North Carolina Child Support Guidelines.  Grounds may exist to deviate from the guidelines. 

Child support orders can be modified if need be. Some examples for modification of child support orders are increase or decrease in either parents’ incomes, any changes in physical custody, or any possible increased needs of the child such as medical or educational treatments. Child support payments continue until the first of the following occurs:

1. The child reaches the age of 18;
2. The child chooses to become emancipated from either or both parents;
3. If the child is still attending high school and reaches the age of 18, then it is until he or she has graduated, otherwise ceasing to attend school on a regular basis, failing to make satisfactory academic progress towards graduation, or reaches the age of 20, whichever may happen first.

Child support cannot be terminated because the custodial parent is failing to follow a custody order. Child support is specifically intended to provide for the needs of the minor child in consideration and is not by any means a desire to punish a disobedient or otherwise neglectful parent.

Marital Torts

A marital tort is any wrongful act that creates a basis for liability against a defendant, with the most common torts being alienation of affection and criminal conversation, which are both recognized as civil actions. One may file a third party claim against an alleged paramour if it is believed that they are the cause of separation. One party must prove existence of a happy marriage, that the marriage has been destroyed or damaged by the paramour, and that the damage or destruction of marriage was done by malicious interference of the paramour, in order to establish liability in an alienation of affection suit. For one to establish liability for criminal conversation, one party must prove that the other was engaged in sexual intercourse with the paramour during the course of marriage and prior to separation.

It is possible to be awarded damages in both claims of alienation of affection and criminal conversation.  This can include testing for sexually transmitted diseases and psychological or psychiatric treatments.

Termination of Parental Rights

Termination of parental rights is when the rights of a parent are legally recognized as being taken away. The parent is no longer legally the child’s parent or obligated to provide for them in any way. The parent can lose the right to visit or talk with their child, they cannot decide how the child is to be raised and taken care of, and the child can then be adopted by a stepparent without the previous parent’s permission. This form of termination can be voluntary, which states that you agree to terminate your rights as a parent perhaps because it is better for the well-being of the child, the child may have been in foster care for an extended period of time, a stepparent may be interested in adopting the child, or a family member may agree to taking over raising the child. Termination of parental rights can also be involuntary, which means that you do not wish to or agree to surrender your rights as a parent, but the court decides your rights be terminated anyway. There are many steps involved in terminating parental rights that include an investigation and court hearing. The legal reasons a court may decide to terminate ones parental rights are:

1. Willfully abandoning the child for at least six months preceding the filing of the action;
2. Abusing or neglecting the juvenile;
3. Failing to support the child financially;
4. Being incapable of providing the proper care and supervision of the juvenile such that the juvenile is dependent juvenile as defined by statute;
5. The parent has willfully left the juvenile in foster care of placement outside the home for more than 12 months without showing to the court that reasonable progress has been made to correct the conditions that led to the juvenile's removal;
6. Egregious harm, if the child was badly hurt while in your care;
7. Absent birth father, which is a father who was not married to the mother at time of birth, not listed on the birth certificate, not involved with the child’s life, not supporting the child, and had not legitimated the child or established paternity;
8. The parent's parental rights have been involuntarily terminated to another child;
9. The parent has been convicted of a serious crime such as murder or voluntary manslaughter. 

It is important to understand that the court system takes parental rights very seriously, along with the constitutionally protected rights of parents.  If grounds for termination exist, the court must then inquire as to the best interests of the child.

Domestic Violence Protective Orders, aka 50B Actions

A domestic violence protective order is defined as a civil order that provides protection to one party from someone who they have or had a personal relationship with. The purpose of attaining a domestic violence protective order is if someone you have or had a personal relationship with attempts to cause you or your minor child bodily injury or intentionally causes bodily injury, places you or a family member or another person in your household in fear of imminent serious bodily injury, continued harassment that rises to levels to inflict substantial emotional distress, or commits any rape or sexual offense. This can also be applied to another party whom you have or had not had an existing personal relationship with.

There are two types of domestic violence protective orders. Ex parte temporary protective orders are filed to provide you and your family with immediate protection from the  abuser. It may be issued by a judge the same day you file a complaint for a domestic violence protective order, if he or she believes that there is serious and immediate danger directed towards you or your child. This domestic violence protective order will protect you and/or your children until a full court hearing takes place, which is typically within 10 days from the time that the ex parte order is granted and the defendant is served.  The other form of protective order is a final domestic violence protective order, also known as a 50B order or restraining order. These orders can last up to one year, however you can request an extension once the year has passed.  Prior to the order being issued, there will be a full court hearing to get a final domestic violence protective order where the abuser will have a chance to defend him or herself.

Modification of Existing Orders

Once a reasonable amount of time has passed, or if circumstances in your case have altered since the previous order was placed, either party may file a motion to modify a prior order concerning custody, visitation or child support.  The party filing the motion must be able to show a substantial change in circumstances since the entry of the original order. You may consider wanting to file a motion to modify a court order to:

1. Lower or raise the amount of child support payments;
2. A change in the residence of a child;
3. To terminate a support order because the child has turned 18, has graduated from high school, or has changed residence;
4. To decrease or increase the amount of time the child spends with each parent. If both parents are able to agree and sign an agreement, then a court hearing may be avoided. If both parents do not agree, one party will need to file a motion to request a hearing for a modification before you can ask the court to change an existing order.

Failure to abide by a court order is a serious offense.  This can be taken in front of a judge, who may find the offender to be in contempt of court.  This person may have to pay an additional fine to cover the attorney’s fees. Any individual who can be found in contempt of court for failure to follow court orders can face jail time, along with other serious consequences. It is important to consider that both parties are to be held accountable to the terms of a consent order or order of the court following trial. 

Enforcement of Existing Orders

Enforcement of an existing court order may sound simple, but it can be quite the opposite.  It is important to have a lawyer that is familiar with the local legal system and can assist to make sure your concerns are handled in an appropriate manner.  Very often a client has an order issued in another state, and the order needs to be registered and enforced in North Carolina.

Enforcing existing court orders can apply to child support/custody, alimony, domestic violence protective orders, and any others. If you feel as though the opposing party in your case if not upstanding their obligation to a court documented order, you may need someone to help.  Each party must do their duty to follow any agreement or court order.