Issues to Consider When Separating From Your Spouse

The issue of the children will be the most emotionally charged topic that will be discussed in any separation.  Our attorneys will consider your unique circumstances and explain the best course of action for custody or visitation to achieve your goals and the best interests of the children.  The most critical factors in determining custody are:

§    Who is the primary caretaker of the children?

§    Which parent best cooperates with the other?

§    What type of environment will the children be in each parent’s household?

§    Disciplinary style of both parents

§    Educational opportunities in each family

§    Is there some issue with a party that inhibits custody (frequent overnight travel, drug or alcohol use, and violence, etc.)?

The child custody portion of the agreement should also have commons sense rules for dealing with each other and the children.  The contract should address how significant decisions affecting the children are made, the right of the parents to access to medical and education records and personnel and notification requirements.  If necessary protective regulations may be included:

CHILD SUPPORT

In most cases, child support is based on the North Carolina Child Support Guidelines and is calculated utilizing both parties’ gross monthly income, the cost of health insurance for the children, work-related childcare, and the number of overnights each parent spends with the children.  If either parent has a pre-existing support obligation for another child, that amount should be included in the support calculations as well (reducing the income of the parent with a prior commitment.) The amount of child support calculated according to the Child Support Guidelines is conclusively presumed to meet the reasonable needs of the children. If for some reason, the child support amount calculated under the Guidelines is unrealistic or inequitable, a parent may ask the Court to deviate from the Guidelines and order an amount of child support that meets the reasonable needs of the children.  Our family law attorneys in Charlotte will attempt to discover the real income and resources of the opposing party from voluntary discovery, public records and information provided by the spouse.  Unfortunately, if the other parent does not cooperate, litigation may be required to obtain the documents necessary to determine the actual income.

ALIMONY

For over 20 years, alimony has been ordered to a dependent spouse without a required showing of fault on the part of the other spouse.  A party is entitled to alimony if that party is the “dependent spouse” and the other is the “supporting spouse.”  If the dependent spouse has needs which he or she is unable to pay with his or her income, those needs may be met by and through alimony payments from the supporting spouse, provided that the supporting spouse can pay alimony after first paying his or her own reasonable expense.  Alimony is a complicated topic, and there are numerous factors to be considered on a case-by-case basis as too whether alimony should be included in the agreement or waived.

PROPERTY DISTRIBUTION

Property distribution (referred to as “Equitable Distribution” in North Carolina) is based upon the general presumption that assets acquired and debts incurred during the marriage and before the date of separation, are marital property and are, therefore, to be divided equally between the parties. In other words, the presumption in North Carolina is that equal is equitable, that a 50/50 split between the parties is fair. There are numerous exceptions to this general presumption and many distributional factors that determine the actual division of marital property and debt.  Clients and their spouses can expect to complete a spreadsheet or form listing the assets and liabilities with additional information such as possession and date of separation value.  Documents supporting this data will be required.

It’s essential that the custody and visitation schedules are discussed with an attorney that is most appropriate considering all the circumstances and prepare an agreement that spells out the arrangement in easily understood language.  You want an attorney that will negotiate on your behalf to achieve the deal that you need, and which will best promote the children’s interests.