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Divorce from Bed and Board | Absolute Divorce | Equitable Distribution | Child Custody | Child Support | Paternity | Postseparation Support | Alimony | Domestic Violence | Separation and Property Settlement Agreements | Premarital and Pre-Union Agreements | International Abduction (Hague Convention cases) | Domestic Torts
Divorce from Bed and Board
In North Carolina, a divorce from bed and board is the equivalent of a judicial separation, and is a fault-based claim. You may be entitled to a divorce from bed and board if your spouse abandoned the family, maliciously turned you out of doors, committed adultery, a cruel and barbarous act or indignities that rendered your condition intolerable.
Only the injured spouse is entitled to bring an action for divorce from bed and board. This action will not enable you to remarry; you must still obtain an absolute divorce.
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Absolute Divorce
According to North Carolina General Statute section 50-6, if you’ve been a resident of the state for six months and physically separated from your spouse for one year, then you’re eligible for an absolute divorce. A separation agreement or distribution of property is not required prior to obtaining an absolute divorce.
During a marriage, husbands and wives generally acquire property, whether it’s a home, cars, bank accounts, a business, IRA’s or stock options. North Carolina law provides for the division and distribution of this property.
Once a couple has separated, either party may ask the court for an equitable distribution. The court will determine the marital and divisible property of the couple then provide for an equitable distribution.
According to North Carolina General Statute § 50-20, Marital Property is defined as real and personal property acquired by either spouse or both spouses during the course of the marriage and before the date of separation of the parties, and presently owned, except property determined to be separate property or divisible property.
Separate property is defined as 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.
Divisible property is defined as: all appreciation and diminution in value of marital and divisible property occurring after the date of separation and prior to the date of distribution, (except that appreciation or diminution in value which is the result of postseparation actions or activities of a spouse); all property, property rights, or any portion thereof received after the date of separation but before the date of distribution that was acquired as a result of the effort of either spouse during the marriage and before the date of separation, including but not limited to, commissions, bonuses, and contractual rights; passive income from marital property received after the date of separation, including but not limited to, interest and dividends; and increases and decreases in marital debt and financing charges and interest related to marital debt.
In North Carolina, the division of property between the parties will be equal, unless the court determines that an equal division of property is not equitable.
One of the most hotly litigated issues that can arise during a divorce is child custody and visitation. North Carolina law provides that custody determinations are to be made in the best interests of the child. No presumption exists between a mother and a father as to who better promotes the best interest of the child.
GWH has a winning track record for both mothers and fathers. We’ll help with your custody dispute and work to ensure that the best interests of your children are served. GWH can offer you a holistic approach to this difficult matter by providing referrals for child custody evaluations and psychological help for transition or visitation issues, along with recommending other professionals as needed.
Child Support
In North Carolina, parents have a legal duty to financially support their children until they reach 18 years of age and have graduated from high school. The amount of support each parent is obligated to pay is generally based upon the proportion his or her income accounts toward the total income of the parties.
In most cases, the amount of child support a parent is obligated to pay is calculated according to the Child Support Guidelines. In certain circumstances, these guidelines do not apply, and in those cases, child support will be calculated based upon the needs of the child and the ability of the parents to pay support.
Paternity
For a child born out of wedlock, the first step to getting child support is to establish the paternity of the child. GWH can assist you in this matter and help you obtain the support to which your child is entitled.
Post-separation Support
According to North Carolina General Statute § 50-16.1A, post-separation support means spousal support to be paid until the earlier of either the date specified in the order of postseparation support, or an order awarding or denying alimony. An award of post-separation support is discretionary with the court.
A domestic action can often be a lengthy process. Post-separation support is a type of temporary support. It helps bridge the gap from the time a dependent spouse separates and first files a claim for alimony until the claim can be heard and ruled upon.
Alimony
According to North Carolina General Statute section 50-16.1A, alimony means an order for payment for the support and maintenance of a spouse or former spouse, periodically or in a lump sum, for a specified or for an indefinite term, ordered in an action for divorce, whether absolute or from bed and board, or in an action for alimony without divorce.
In determining if you’re entitled to alimony, the court considers whether you’re a dependent spouse, your spouse is a supporting spouse and an award of alimony is equitable considering the circumstances. The court also considers acts of marital misconduct committed when determining alimony.
If the court finds that a dependent spouse committed an act of illicit sexual behavior during the marriage, the court will not award alimony. However, if the court finds that a supporting spouse committed an act of illicit sexual behavior during the marriage, then the court will order the supporting spouse to pay alimony to the dependent spouse.
The amount and duration of an alimony award are completely within the discretion of the court. There are no set rules for determining how much alimony you may pay or receive, nor for how long you may pay or receive it. Generally, however, these awards are based upon the income and expenses of the parties.
Domestic Violence
Domestic violence is a problem that does not discriminate; it is statistically consistent across all socio-economic and racial lines. Chapter 50-B of the North Carolina General Statutes allows domestic violence victims to seek an order of protection against the offender.
Actions can only be filed against persons with whom the aggrieved party has or had a familial relationship (current or former spouse, persons of the opposite sex with whom you have lived, parents, grandparents, etc.). Criminal remedies are also available. GWH can help you in initiating or defending against these actions.
For more information on domestic violence, visit the following websites:
Women’s Crisis Line
http://www.womenscrisisline.com/northcarolina.htm
Department of Justice Statistics
www.ojp.usdoj.gov/bjs
Department of Justice Violence Against Women’s Office
www.usdoj.gov/vawo
National Organization for Women
http://now.org/now/issues/violence
Raleigh Chapter of National Organization of Women
http://surferkat.homestead.com
National Organization for Women Legal Defense and Education Fund
www.nowldef.org
National Clearinghouse on Martial and Date Rape
http://members.aol.com/ncmdr/index.html
Institute for Women’s Policy Research
www.iwpr.org
Separation and Property Settlement Agreements
Settlement of disputed issues is always preferable to litigation. At GWH, settlement is always fully explored as an alternative to litigation. If you and your spouse can agree to the terms of your separation and property division, then a separation and property settlement agreement may be for you.
Separation and property settlement agreements are legal contracts which may provide for the terms of your separation, child custody, child support, property division, responsibility for joint debts, alimony provisions and any other issues that you and your spouse may have arising out of your marriage.
GWH can help you locate and value assets acquired during the marriage, and negotiate a fair settlement of care and custody of children, support and property division issues.
Premarital and Pre-Union Agreements
In North Carolina, premarital agreements are governed by the Uniform Premarital Agreement Act found in Chapter 52B of the North Carolina General Statutes. A premarital agreement is an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage.
Premarital agreements must be in writing and signed by both parties. You and your prospective spouse may contract with respect to any rights you may have in the property of the other, how your property will be distributed in the event you separate, whether you or spouse will be entitled to receive alimony, and any other matter that is not in violation of public policy.
If you are thinking about getting married, you may need to decide whether a premarital agreement is right for you. If you and your partner are planning to enter into a cohabitation living arrangement, you may want to consider a pre-union agreement.
In a pre-union agreement, the parties outline what assets they want to consider separate property and what assets they want to consider joint property. Pre-union agreements can also outline how income will be handled between the parties.
The experienced lawyers at GWH can assist you in making an informed decision and covering the issues that are important to you. These issues can include how to protect pre-marital assets or how income will be handled between the parties.
Domestic Torts
North Carolina recognizes tort liability between spouses. Under certain circumstances, a civil action may be maintained against your spouse for assault, battery, infliction of emotional distress and other tort claims.
North Carolina also recognizes claims for alienation of affections and criminal conversation which may be brought against your spouse’s paramour. GWH has extensive experience in prosecuting and defending claims for alienation of affections, criminal conversation and other tort claims.
International Abduction (Hague Convention cases)
Parental kidnapping poses an increasing problem, as the kidnapping parent may take the child to a country outside the United States. To help combat this problem, the Hague Convention on the Civil Aspects of International Child Abduction was adopted in 1980. The Convention reflects the Hague Conference view that international child abduction is a global problem in need of a coordinated international response.
The Hague Convention is now in force in 48 countries around the world. For a list of participating countries, please visit http://state.gov/m/a/auth/c1268.htm.
The Hague Convention is a civil legal mechanism available to parents seeking the return of, or access to, their child who has been wrongfully taken to another country. As a civil law mechanism, the parents, not the governments, are parties to the legal action.
The countries that are party to the Convention have agreed that a child who is habitually resident in one country, and who has been removed to or retained by the other parent, relative, or third party in another country in violation of the left-behind parent's custodial rights, shall be promptly returned to the country of habitual residence.
The Convention can also assist parents attempting to exercise visitation rights abroad. GWH has successfully handled many international Hague Convention actions.
Please visit the National Center for Missing and Exploited Children for more information about the Hague Convention.
Complex Equitable Distribution
GWH is the firm of choice in domestic disputes where substantial assets – both tangible and intangible – are to be valued and distributed between the parties to a divorce.
We’ve represented clients with substantial real estate holdings such as limited partnerships, commercial property and residential property including multiple vacation homes. We’ve also represented clients where business interests with a fair market value in excess of $50 million dollars were at stake.
The firm frequently handles the valuation and division of complex pension and retirement plans, deferred compensation, stock options, executive employment benefits such as supplemental executive retirement plans, contract rights, Golden Parachutes and severance packages with monthly benefits of $25,000 to $200,000 or more per month.
GWH has, by design, developed the expertise to advocate for and protect our client's interests and obtain tax advantaged settlements or litigated results. Where marital assets worth millions are at stake, resolving the case (whether by negotiated settlement or going to trial) requires extensive analysis, tracing of funds, and an understanding of tax and accounting issues. More importantly, it requires knowledge of complex valuation issues – which may sway an appraiser's value of a business or other asset by thousands or millions of dollars. These areas of expertise set GWH apart from other domestic relations law firms.
Business Valuation
Equitable distribution came to North Carolina in 1982. At the time, there were few professionals qualified to perform a competent business valuation. As a result, business valuations were often performed by accountants with no training in valuation standards, theory or practice.
Some lawyers accepted valuations verbatim because they lacked the financial expertise to evaluate the appraisal and point out the weaknesses to a judge. Errors in calculations used to develop capitalization or discount rates, or the weighted average cost of capital (WACC) were missed. Inappropriate application of valuation methods were frequent and the use of discredited valuation methods were readily accepted by lawyers and the courts resulting in overvalued business interests. The result was that the division of marital property – based on the inflated value – was neither equitable nor reflective of fair market value to the business owner who typically retained the asset.
Carole Gailor recognized this deficiency soon after equitable distribution became the law. She has focused on the study of business and intangible asset valuation for years receiving training tailored for appraisers and business valuation professionals given by the American Society of Appraisers, the Institute of Business Appraisers and other organizations.
To stay on top of the latest developments in the business valuation field, Carole continues to study industry texts and periodicals. Through research and experience, she has developed the skills necessary to cross examine an opponent's business appraisers and challenge their qualifications, assumptions, methodology, statistical, economic and financial analysis and most importantly, their conclusions.
Today, other members of GWH are similarly engaged in the work of business valuation creating a store of knowledge, skill and intellectual resources within the firm. Our team frequently works with highly skilled, nationally recognized business valuation professionals such as Shannon Pratt, Willamette Management Associates and Banister Financial, Inc.
Carole Gailor regularly consults with other legal professionals to review business valuations performed by their own or their opponent's appraisers. She also assists in preparing direct and cross examinations to educate the court, support the valuation or attack its weaknesses.
In addition, GWH members train business appraisers on how to respond in depositions and when testifying at trial. This training helps the appraiser project credibility when dealing with opposing counsel and the Court.
In the context of separation and divorce, Carole is frequently appointed by the court or selected by opposing parties as an arbitrator or mediator in complex equitable distribution and business valuation issues.
