Family Law Attorneys

In NC, pursuant to NCGS § 51-1, a valid legal marriage is the only type of marriage recognized.  A valid legal marriage requires:

The consent of a male and female who may lawfully take each other as husband and wife, freely, seriously, and plainly expressed by each in the presence of each other either:

1. 1. In the presence of an ordained minister of any religious denomination, a minister authorized by a church, or a magistrate, and
   2. With a declaration by the minister or magistrate that the persons are husband and wife; or

According to any mode of solemnization recognized by any religious denomination, or federally or State recognized Indian Nation or Tribe.

In order to marry in NC, the couple must obtain a marriage license from any Register of Deeds in any county in North Carolina as well as meet other statutory requirements such as age.

Common law marriage entails two people living together and holding themselves out as married, but who have not solidified the union through a ceremony and have not received a declaration that they are married from a minister or magistrate.  Common law marriage is not a legal or valid marriage in North Carolina, although it may be recognized in other states.  Neither is same-sex marriage valid or recognized in NC even if the couple was married in a state that allows same-sex marriage.

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The interruption of a family caused by separation and divorce is a difficult process for all parties involved, including the children. Many decisions must be weighed when it comes to providing for the care and needs of children throughout the divorce and after.  The Court is often tasked with making decisions about who will maintain physical or legal custody of the children, how much monetary and non-monetary support the children will need from each parent and the terms of how that support will be provided.  Physical custody involves such activities as actually raising the child, who the child lives with, who clothes the child, and who takes the child to school.  Legal custody is making decisions for the child such as religious upbringing, what sports the child will participate in, making medical decisions for the child, and where the child will attend school. 

Parents may be granted joint physical and/or legal custody, one parent may be granted sole physical custody with both parents having shared legal custody, or in extreme cases one parent may have sole physical and legal custody.  How custody is granted is based on the fitness of the parents in their ability to have physical and/or legal custody. 

Visitation is a form of child custody where one parent or other relative may be allowed to spend time with the children, but not be able to make any legal decisions for the child and not have the child solely in their physical presence on an ongoing basis.  When visitation is granted, the Court will determine the times and location for the visitation.  All decisions made by a court based on child custody, visitation and child support are based on the best interest of the child as well as state guidelines. 

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A collaborative agreement is a mutual arrangement between two or more parties to work together toward a common goal or objective.  In family law matters, it is typically a child custody and/or child support agreement which are agreements between two parents on how they will share time with the children or provide for the child’s needs, financially and otherwise, and split resources.  These agreements will outline the responsibilities and contributions of each party to the care and maintenance of the child(ren) as well as the terms and conditions governing the collaboration.  Collaborative agreements can be beneficial to avoid having a judge decide the care and maintenance of a child.

A prenuptial agreement is another type of collaborative agreement or contract entered into between two individuals before they get married.   This agreement outlines the distribution of assets, property, debts, assets, spousal support, business interests, and other financial matters in the event of divorce.  Prenuptial agreements are often used by individuals who want to protect their assets or financial interests in the event of marriage dissolution.  They can provide peace of mind and clarity about financial matters, especially in cases of significant wealth disparity, previous marriages or complex financial situations.

However, keep in mind that prenuptial agreements have limitations and may not be enforceable in certain circumstances, such as if the agreement is illegal or was entered into under duress.  In these instances, a court may invalidate some or all of its provisions.  It is imperative to consult with an experienced attorney who can provide legal advice tailored to your specific situation and ensure the agreement complies with state laws.

In summary, a collaborative agreement is a formal arrangement that allows parties to work together effectively and efficiently toward a shared objective, pooling their resources to achieve mutually beneficial outcomes.

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Alimony, also known as spousal support, may be awarded to one spouse during or after divorce to provide financial assistance to a dependent spouse if alimony is equitable after considering certain statutory factors.  A dependent spouse is one who relies on the supporting spouse for financial support and maintenance. The amount and duration of alimony payments are determined based on various factors, including the length of the marriage, each spouse’s financial situation, and contributions to the marriage.  Certain acts, such as illicit sexual behavior during the marriage may affect an award or denial of alimony.  The court will decide if an award of alimony will be permanent or temporary.

The Court has 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.  Some factors the court considers in determining an award or denial of alimony are:

1. Marital misconduct;
2. Earnings/earning capacities of the spouses;
3. Ages, physical, mental, and emotional conditions of the spouses;
4. Amount and sources of earned and unearned income of the spouses, such as dividends medical benefits, retirement, insurance, and social security;
5. Duration of the marriage;
6. The contribution of one spouse to the education, training or increased earning power of the other spouse;
7. The standard of living of the spouses during the marriage;
8. Property brought to the marriage; and, the
9. Relative needs of the spouses.

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During a divorce it is paramount that property be divided between the spouses.  There are several types of property classifications as defined in North Carolina.

Marital property: Real and personal property acquired by the spouses during the marriage and before the date of separation.  This category includes pensions and retirement accounts of the spouses.

Separate property: Real and personal property acquired by a spouse before marriage or inherited by a spouse by devise, descent, or gift during the course of the marriage.  A gift given to a spouse by the other spouse will be deemed separate property only if that intent is conveyed at the time it is given.

Distributive award: Payments that are payable either in a lump sum or over a period of time in fixed amounts, but shall not include alimony payments or other similar payments for support and maintenance which are treated as ordinary income to the recipient.

Divisible property: all real and personal property as set forth below:

1. All appreciation and diminution in value of marital property and divisible property of the parties 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 post-separation actions or activities of a spouse shall not be treated as divisible property.
2. 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 efforts of either spouse during the marriage and before the date of separation, including, but not limited to, commissions, bonuses, and contractual rights.
3. Passive income from marital property received after the date of separation, including, but not limited to, interest and dividends.
4. Passive increases and passive decreases in marital debt and financing charges and interest related to marital debt.

North Carolina allows for equitable distribution when dividing marital property during divorce. This means that marital assets and debts are divided fairly, but not necessarily equally.  If neither spouse requests an unequal division, but the Judge finds that one party should receive more, based on certain factors, he or she may award one party an unequal distribution of property, debts, and assets. Factors such as the duration of the marriage, each spouse’s contributions, and economic circumstances are considered when dividing property.

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North Carolina has laws and procedures governing the adoption process, including requirements for prospective adoptive parents, consent from biological parents, home studies, and finalization of the adoption in court. An individual or a married couple may file a petition in the county clerk’s office to adopt a child or an adult. There are requirements that a married person must follow, such as obtaining the joint consent of their spouse in order to file an adoption petition for another person unless the one spouse can show cause as to why the other spouse should not be joined on the petition.

Adoption can be in one of several forms:

• Relative adoption – A relative of the child adopts the child with consent from the parents. Relatives can include full or half siblings, grandparents, first cousins, aunts, uncles, great grandparents, or a great aunt/uncle.
• Agency Adoption – A person (petitioner) interested in adopting a child can seek placement of a child in their home for the purpose of adoption and DSS consents to the adoption.
• Independent Adoption – A child’s parent or guardian places the child with the petitioner and consents to the adoption. In an independent adoption, the petitioner is not, by law, considered a relative. For instance, if a 2nd cousin or great-great grandparent seeks to adopt a child they would not be considered a relative for adoption purposes, but instead this adoption would be independent.
• Stepparent adoption – A stepparent petitions to adopt his or her stepchild.
• Adult adoption – An adult petitions to adopt another adult. A spouse may not adopt his or her spouse.
• Foreign adoption – There are two types of foreign adoptions:
  • Re-adoption of a child who was adopted in a foreign country by the same petitioner.
  • Adoption of a child when an adoption is not finalized in a foreign country.

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North Carolina provides legal protections for victims of domestic violence through restraining orders (also known as domestic violence protective orders or DVPOs). These orders can provide various forms of relief, including prohibiting contact between the victim and the abuser and granting temporary custody of children.

If you have a family law issue, schedule a consultation with Barham McCoy so we can ease your concerns and place you and your children in the best position to move forward.

Are you looking for an Experienced  Family Law Attorney to represent you?

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