After practicing family law for 31 years, I have noticed that many of my clients have common misconceptions about family law. Some of the most frequent questions the family lawyers at Law Firm Carolinasreceive are:
- If my wife and I are sleeping in separate bedrooms, does that count for the one-year separation required for absolute divorce? Parties must be physically separated and have separate addresses to count as “separation” for purposes of the one-year requirement for absolute divorce.
- Does my wife have to account for how my child support payments are used? Child support is supposed to cover all of the expenses of the children, including such things as mortgage/rent, utilities, car payments, gasoline, food, clothing, house maintenance, etc. The custodial parent does not have to provide an accounting to the non-custodial parent as to how the funds are utilized and a Judge will not require her to do so.
- Does my child support continue when my daughter goes off to college? Child support usually terminates at the later of a child turning 18 or being graduated from high school. Child support may continue up until age 20 if the child is still in high school and is making progress towards graduation. It also terminates if the child gets married or otherwise becomes emancipated. Under Equal Protection principles, the law cannot force parents who are married and living together to pay for college so the law does not require separated and divorcing parents to pay college expenses despite the fact that children frequently return to one parent’s home during school holidays and summers.
- If my child is 13 does he get to decide where he wants to live? A child of a suitable age and discretion is entitled to have his preferences heard by a judge, but his wishes are never controlling on the court. There is no set age that a child may be interviewed by a judge and his wishes taken into account, and each judge has his or her preferences about speaking with children.
- If my child does not wish to visit her other parent and there is a court order requiring visitation, do I as custodial parent have to force her to visit? The short answer is no; however, the custodial parent has an obligation to encourage the child to visit and not interfere with the non-custodial parent’s visitation rights. Case law holds that a parent cannot be held in contempt when the child refuses to visit if that parent is not preventing the visitation.
- If my husband fails to pay child support, does he have the right to visit the child? Child support and visitation are not dependent upon one another. You have other remedies to enforce the child support obligation via contempt proceedings or breach of contract actions.
- If we separate and my wife fails to pay child support, can we get into court quickly to get it established? More than likely not. The only remedies that are available on short notice are contempt of court and entry of domestic violence protective orders. The Local Rules for the 18th Judicial District require a minimum of 4 weeks’ notice to have a motion placed on the court calendar and cases are rarely heard the first time they are on the calendar, which means they get continued from month to month.
- If I receive an inheritance during the marriage, is my husband entitled to it if we separate? No, as long as you can trace the inheritance. Keeping it in an account in your individual name is the safest way to do this, but if you can trace the deposit into a joint account, you may be able to have the inheritance classified as separate property. Gifts from third parties and inheritances are the separate property of the recipient.
- How do you define cohabitation for purposes of terminating alimony? Cohabitation is defined as living continuously and habitually in a heterosexual or homosexual relationship where there is evidence of the voluntary mutual assumption of marital rights, duties and obligations usually associated with married people. Case law tells us that merely living together on a continuous or habitual basis is not enough. There must be a commingling of finances between the parties. If each party pays the expenses at his or her residence, then there is no cohabitation.
- Does the law provide that alimony lasts half the length of the marriage? Alimony is established in the discretion of the judge or by agreement between the parties. There are no alimony guidelines in North Carolina and judges have free rein to establish the amount and duration based on the evidence presented.
If you have questions about separation, divorce, custody, child support, alimony or property division, please contact one of the four family law specialists at Law Firm Carolinas.