Hayes Law Firm handles numerous issues pertaining to Family and Domestic Law. This category consists of Divorce/Annulments, Termination of Parental Rights, Custody DSS Custody Involvement, Child Support, Separation Agreements, Alimony/Post Separation Support, Premarital Agreements, Marital Property Division, Domestic Violence (50B), Attorney Fees, and Name Changes. Please scroll down the list of services that we offer in our pratice.

 

Divorce/Annulment

North Carolina is a ‘no fault’ divorce state. No fault meaning North Carolina family law does not consider marital fault of either party in determining whether a party is entitled to a divorce. In order to obtain a valid divorce in North Carolina that is not void or voidable, a party must generally meet the following requirements: maintain as a citizen and resident of the State of North Carolina for at least six months preceding the request for a divorce, to have been married, to live separate and apart for one year preceding the request for divorce, and an intent not to resume the marital relationship.

Annulments are a rarity in North Carolina, and can be obtained only in limited situations. Limited situations being issues regarding the following: kinship, non-age, prior subsisting marriage, impotence, mental incompetence, duress, marriage in jest, marriage for a limited purposes, and fraud.

 

Termination of Parental Rights

Terminating a biological parents’ parental rights requires specific procedures to be followed within the Court system. Generally, an action for a request to terminate parental rights begins with the filing of a petition that must state the specific statutory grounds under which you desire to have the parents’ rights terminated. A guardian ad litem is usually appointed by the Court who will investigate the nature of the case and the interest of the minor child at issue. After a preliminary hearing on the matter for termination, an adjudication hearing is scheduled to determine whether an individual’s rights should be terminated. The adjudication requires the determination of two primary issues: one being whether adequate grounds exists for the termination of parental rights, and two being whether it is in the best interest of the minor child that the parent’s rights be terminated.

 

Custody

Custody cases are generally complex and many times require litigation. Hayes Law Firm prides itself in acknowledging that children of parents are of vast importance and recognizing that complete preparation is essential to producing the best positive results for it’s clients in a custody case. North Carolina law states that “any parent, relative, or other person, agency, organization or institution claiming the right to custody of a minor child may institute an action or proceeding for the custody of a minor child.” N.C. Gen. Stat. §50-13.1(a). The statute has been interpreted to include grandparents, and specific statutes address grandparent’s rights to custody of minor children.

In North Carolina, the standard that Courts go by in making a custody determination is the “best interest” standard. While this is not always the standard Courts go by depending on the poster of the case, it is the general rule. The general procedure of a custody case begins when someone files a request for custody. The case is generally then moved through the Court system in the following stages: a hearing on temporary custody, mediation, and then a hearing on permanent custody. The general purpose of a temporary custody hearing is to stabilize the minor child and ensure the child is safe and protected. The purpose of mediation is to allow the parties an opportunity to resolve their custody dispute without trial in Court. The purpose of a permanent custody hearing is to make a more definite decision concerning the custody of the minor child. In North Carolina, custody is never “permanent.” Custody orders are always subject to modification and/or change by the Court.

DSS Custody Involvement

Department of Social Services involvement in custody of minor children is governed by the Juvenile Code which is Chapter 7B of the North Carolina General Statutes. DSS will get involved with a family and/or minor child if they have determined that a minor child is subject to abuse, neglect, or dependency. Many times, DSS will handle matters outside of Court without filing a petition for custody by requesting parents and/or others to accept various programs and/or services. If DSS does file a petition alleging that a minor child has been abused, neglected, or dependent; then Court proceedings will follow.

 

Child Support

In North Carolina, child support is generally governed by the North Carolina Child Support Presumptive Guidelines. There are circumstances whereby a party does not have to follow the guidelines, but specific steps must be taken. The North Carolina Child Support Presumptive Guidelines provide worksheets that are nothing more than mathematical formulas designed to determine a paying party’s child support obligation. Various information is used to determine the amount of child support including: gross income, number of dependents, gross income of spouse, other child support obligations, presumptive child support amount, daycare expenses, health insurance premiums, and extra curricular expenses. There are three different worksheets that can be applied in determining child support. The type of worksheet that is used is generally governed by a determination of how many overnights a minor child resides with each party.

 

Separation Agreements

Separation Agreements are an alternative to settling disputes between legally separated parties in lieu of Court proceedings. Separation Agreements are less costly than Court proceedings, and a quicker alternative to resolving separation disputes. Separation Agreements can cover a vast amount of issues surrounding the separation of parties, including but not limited to the following: separate maintenance, custody, children’s welfare, child support, children’s medical insurance, uninsured medical expenses, life insurance, post separation support and alimony, release of property and estate rights, free trader, real and personal property, automobiles, retirement, bank accounts, debts of the parties, business interests, future debts, property waivers, tax matters, breach of the agreement, attorney fees, costs, jurisdiction, and other general matters.

 

Alimony/Post-Separation Support

Alimony and post-separation support are commonly known as spousal support. Post-separation support was designed to provide an avenue whereby a dependent spouse could obtain immediate relief for support. Post-separation support is usually temporary in nature. Alimony is a more permanent form of spousal support. In order to entitled for alimony, a party must be a dependent spouse. North Carolina law defines a dependent spouse as one who “is actually substantially dependent upon the other spouse for his or her maintenance and support or is substantially in need of maintenance and support from the other spouse.” N.C. Gen. Stat. §50-16.1A(2). Additionally, the Court must also find that the other party is a supporting spouse. Many other factors can play a major role in the determination of the amount of alimony and the duration, such as: standard of living, length of marriage, relative needs, tax consequences, age, physical condition, emotional condition, contribution by one spouse or the other etc. Unlike child support, Judges have wide discretion in making an award of alimony; including the amount and its’ duration.

 

Premarital Agreements

Generally speaking, premarital agreements are governed in North Carolina by the law of contracts and the Uniform Premarital Agreement Act (UPAA). Premarital agreements require much attention by attorneys when drafting due to the amount of possible pitfalls that the agreements are subject to. It is highly recommended that you seek an attorney if considering the drafting of a premarital agreement. Although premarital agreements may not require consideration in order to be valid, they should be properly executed between the parties. Generally, premarital agreements are designed to contemplate the issues of possible separation and/or divorce. These agreements provide for a predetermination of what would happen in the event parties separated and/or divorced.

 

Marital Property Division

Equitable distribution is the legal term that is used to characterize division of property existing between parties in a marriage. Although equitable distribution is complex, a few general rules can be applied. Generally speaking, all marital property existing between a Husband and Wife can be divided equitably (equally) between the parties. Marital property is defined as “all real and personal property acquired by either spouse or both spouses during the course of the marriage and before the date of the separation of the parties, and presently owned, except property determined to be separate property or divisible property.” N.C. Gen. Stat. §50-20(a)(1). Other types of property such as separate and divisible property will also be considered. In every equitable distribution Court trial, the Court will take steps to classify the property, value the property as of the parties’ date of separation, and then divide the property.

 

Domestic Violence (50B)

Chapter 50B entitled Domestic Violence allows a party to obtain a protective order against another party, which is designed to essentially keep one party away from another and cease domestic violence. In order to obtain a domestic violence protective order, a party must show one of the following four things: attempting to cause bodily injury, intentionally causing bodily injury, placing the party or a member of the party’s family or household in a fear of imminent serious bodily injury, or continued harassment that rises to the level of substantial emotional distress. N.C. Gen. Stat. §50B-1. One must be of a certain relationship to the other party to obtain a domestic violence protective order. Additionally, Chapter 50C provides for Civil No-Contact Orders against other parties.

 

Attorney Fees

Attorney fees are usually made in the form of a request to a Court at the end of a hearing. Attorney fees can be granted in many situations, including but not limited to: post separation support hearings, alimony hearings, child support hearings, and custody hearings. Attorney fees are rarely, if ever, granted in equitable distribution hearings. The determination of whether attorney fees are granted to a party is made by the Judge, usually in his or her discretion.

Name Changes

Names Changes are governed by Chapter 101 of the North Carolina General Statutes. Changing an individual’s name requires precise procedure and applicability of rules within the Clerk of Court. Some name changes require affidavits of good character. However, all names changes will require a posting of notice than an individual is going to change his or her name. Although consent of both parents to change the name of a minor is beneficial, the rules do allow the change of a minor’s name when the other parent will not or cannot consent in particular situations.