Premarital Agreements

A marriage can end in only one of two ways: (1) the death of a spouse; or (2) divorce. In certain situations, it is advisable for a client to secure a signed premarital agreement prior to entering marriage in order to control (to the extent possible) the outcome of the ending of the marriage. Cary has handled numerous premarital agreements for both prospective husbands and prospective wives. Her goal always is to ensure that the client fully understands the reasons for which a premarital agreement may be needed - or not -- and the options for achieving the client's goals.

Often, the laws of North Carolina related to separation and divorce are adequate to achieve the desired outcome for the client, without the need for a premarital agreement. Cary makes sure that the client understands potential outcomes at the end of a marriage both where a premarital agreement exists and where one doesn't. Sometimes, such as when a client who has children decides to remarry, or when a client wants to protect his or her interest in a business acquired prior to marriage, a premarital agreement may be advisable. If Cary and her client after consultation and analysis of the client's goals determine that a premarital agreement is needed, Cary makes sure the client understands that there is no such thing as a “standard” premarital agreement. Each one is based on a careful analysis of the particular goals of the client, and Cary and her client work on creating an agreement that will meet the client's needs under all possible scenarios. Cary has a great deal of experience in crafting solid agreements that give the client peace of mind as he or she enters marriage, and she has also handled numerous cases in which the client has been asked to sign a premarital agreement presented by his or her fiancé. In such cases, Cary serves as a strong advocate to help the client retain, to the extent possible, his or her legal rights at the end of marriage.

Mediation & Arbitration

Over the last several years, mediation has become a very common and cost-effective way to resolve disputed issues arising out of a failed marriage. As an experienced certified Family Financial Mediator, Cary is well aware of the benefits of settling a family law case privately, without the stress, unpredictability, and financial hardship of going to court. Cary regularly guides her own clients through the mediation process, where a neutral family law mediator is retained to help the parties reach a settlement of all disputed issues. In addition, Cary often is asked by other family lawyers to serve as the mediator in their cases. Many parties who have decided to end their marriage find that mediating their case with Cary minimizes stress and acrimony, saves legal fees, and is in general a more desirable and dignified way to resolve their case.

Arbitration involves the selection of an experienced family lawyer to serve as a “private” judge who is empowered with the authority to hear evidence and make binding rulings on the various issues involved in a particular family law case. Cary not only represents her own clients in arbitration proceedings, but often is selected by other family lawyers to serve as the arbitrator in their cases.

Separation Agreements & Property Settlements

The end result of a successful negotiation between the attorneys of divorcing spouses is often the signing of a comprehensive settlement agreement called a Separation Agreement and Property Settlement (“SAPS”). These contracts typically contain all of the settlement terms to which the parties must adhere as they move forward in their new, separate lives.

Areas covered typically include (1) the division of marital property and debt; (2) the custodial arrangement for and other detailed provisions related to the minor children; (3) the child support and spousal support obligations of each party; and (4) other specific terms agreed upon by the parties.

A SAPS is, with certain exceptions involving children, not modifiable absent mutual agreement of the parties, and it becomes binding and enforceable once signed and remains binding despite any subsequent absolute divorce. Cary has many years of experience negotiating and drafting these agreements on behalf of clients.

Child Custody & Child Support

In North Carolina, the issues related to the children of divorcing spouses typically include (1) the legal custody of the children; (2) the physical custody of the children; and (3) the monetary support for the children. With regard to legal custody, parents typically have “joint” legal custody, which most often means that the parents will be required to confer and consult with one another about significant issues affecting their children in an attempt to reach mutual decisions. Sometimes only one parent is charged with making these decisions, and that parent is said to have “sole” legal custody.

The physical custody of the children involves a decision being made about where the children will live after the parents separate, and often children live with both parents according to a schedule that is deemed to be in their best interests. Some parents have a primary/secondary physical custody arrangement, where one parent has the children for most of the overnights in a year, with the other parent spending secondary custodial periods with the children. Other parents share physical custody, which means that each parent has the children for at least 123 overnights per year, with the number of overnights per parent to vary according to the desired schedule. Many parents choose to have equal physical custody, with each parent having the children for the same number of overnights per year. Equal custody schedules often involve “week on, week off” schedules where each parent has the children for a full week, or “5/2/2/5” schedules, where one parent always has the children on Monday and Tuesday nights, the other parent always has the children on Wednesday and Thursday nights, and the parents alternate Friday, Saturday, and Sunday nights. Parents usually share holidays and special occasions by alternating which parent has the children for a particular one each year. Vacation time is often carved out for each parent as well.

Child support is often determined by application of the North Carolina Child Support Guidelines (which are accessible on the Web), with the gross monthly incomes of the parents, the schedule of overnights for the children, and any health insurance or work-related child care costs being the key factors in determining the actual amount of support owed by one parent to the other. In addition to a monthly amount of child support being established, the parents typically share medical and dental expenses for the children that are not covered by insurance, with the sharing often being done pro rata based on the respective incomes of the parties. In certain high-income cases, the Guidelines are inapplicable and instead child support is determined by an analysis of the actual monthly needs of the children based on how they were used to living before their parents separated. Once established, child support is modifiable only upon a substantial change in circumstances, which most often involves one of four events: (1) an increase in the needs of the children; (2) an involuntary decrease in the income of the parent paying child support; (3) a change in the physical custody schedule; or (4) a child support order that is three years old or more and where there is a 15% disparity in the child support owed under the existing order and a current application of the Guidelines.

Alimony & Postseparation Support

Determining the amount and duration of financial support owed to a spouse who is “dependent” on the other spouse (typically because there is a significant disparity in the parties' incomes) is one of the most challenging aspects of divorce to resolve. In North Carolina, there are no Guidelines for determining spousal support, as there are in the case of child support. Instead, a three-pronged approach is used that involves an analysis of (1) the monthly financial needs of the dependent spouse; (2) the ability of the dependent spouse to contribute to his or her own needs; and (3) the ability of the “supporting” spouse to help make up the shortfall between (1) and (2).

Determination of the monthly financial needs of the dependent spouse requires a detailed analysis of the spending done by or on behalf of the dependent spouse in the year or so prior to the parties' separation from one another. This typically involves a review of all of the monthly credit card statements, bank account statements, and receipts for the time period at issue and can be quite a tedious task. Once the dependent spouse's monthly financial needs are determined, the ability of the dependent spouse to contribute to his or her own needs is analyzed by considering his or her net income from employment or other sources. In certain cases, the earning capacity of the dependent spouse is considered even though he or she may not be employed, or may be employed only on a part-time basis. Finally, if the dependent spouse is not able to bring in enough money to meet his or her monthly expenses, the supporting spouse's ability to help make up the shortfall is considered, after taking into account the amount needed for the supporting spouse's own monthly expenses and any child support obligations he or she may have.

Spousal support awarded on a temporary basis pending the resolution of the marital property and debt division is called “postseparation support” and is typically awarded for approximately one year. Spousal support awarded once the other marital issues are resolved is called “alimony.” The duration of alimony, like the amount, is in the sole discretion of the presiding family court judge and can vary wildly depending on the facts and circumstances of the case and the particular assigned judge. A good rule of thumb, however, is the longer the marriage, the longer the expected duration of alimony. Many other factors play into the alimony award, including any marital misconduct (e.g., illicit sexual behavior, substance abuse, domestic violence, indignities) on the part of either the dependent spouse or the supporting spouse. Regardless of the duration awarded, alimony terminates upon the death of a party or the remarriage or cohabitation of the dependent spouse.

Equitable Distribution

When spouses separate and divorce in North Carolina, one of the issues that must be resolved is the division of the property and debt they have acquired during the marriage that still exists when they move apart from one another. North Carolina is an “equitable distribution” state. The marital estate is presumed to consist of all the assets (e.g., residences, retirement, bank accounts, vehicles, business interests, furnishings) acquired by either spouse, or by the spouses jointly, between the date of marriage and the date of the physical separation of the parties. There are exceptions for gifts from third parties and inheritances received during the marriage, which are the separate property of the owner spouse and are not subject to division. In addition, all property that a spouse brings into the marriage that still exists and can be identified on the date of separation remains (with certain exceptions) his or her separate property.

Debts that exist on the date the parties separate (e.g., credit card balances, mortgages, equity lines, vehicle loans) that were incurred for the joint benefit of the parties are also equitably divided. An equal division of the net marital estate (assets minus debts) is presumed to be equitable, or fair. There are various factors that can be considered if one party thinks that the marital estate should not be divided equally, but most of the time, both in court and in private settlements, an equal division is the end result. In addition, an “in kind” division is preferred, which means that each spouse receives assets and debts of approximately equal value (rather than forcing a sale of all assets or requiring one party to pay the other party money in exchange for the assets).

Absolute Divorce

When spouses have been living separate and apart from one another for a full year, either spouse may apply to the court for a judgment of absolute divorce. A judgment of absolute divorce is a document signed by a judge that severs the bonds of matrimony, resulting in the parties no longer being husband and wife. The soonest that this request can be made is on the 366th day following the parties' physical separation from one another (i.e., moving into different residences).

The only requirements for obtaining an absolute divorce are (1) the party applying for the divorce must have been a citizen and resident of North Carolina for at least six months before asking for the divorce; and (2) the spouses must have been living separate and apart for at least one full year with the intent on the part of at least one of them to end the marriage. It is common for parties to have already resolved all of their substantive divorce-related issues prior to the entry of the absolute divorce, often by entering into a comprehensive separation agreement and property settlement. It is particularly important, however, for parties to have resolved the matters of equitable distribution and spousal support (and related attorney's fees) prior to the time that a request for an absolute divorce is made; if these issues haven't been resolved, then the claims must be filed in court prior to the entry of the divorce in order to preserve them.

If a spouse desires to resume the use of her maiden name, the surname of a prior deceased husband, or the surname of a prior living husband if she has children that have his surname, she may do so as part of the absolute divorce proceeding. Parties who have attorneys typically do not appear in court on the day their divorce is entered; their attorney appears for them in a “summary judgment” proceeding. Spouses who handle the divorce filing themselves, without an attorney, are required to appear in court before the judge and answer questions under oath related to the requirements for an absolute divorce.