FAMILY LAW

EPM's family law practice focuses on significant cases involving issues of child custody, alimony and the distribution of marital property. David C. Pishko has been board certified as a specialist in family law by the North Carolina State Bar and is listed as one of the Best Lawyers in America in the area of family law.

The firm handles the following kinds of domestic cases:

• Equitable Distribution

• Pre-Marital and Separation Agreements

• Child Custody and Support

• Divorce

When a marriage breaks up, several important legal issues arise. If the married couple has children, someone must decide where the children will live, how much time they should spend with each parent, and whether one parent should pay child support to the other parent. Whatever property and debts the couple accumulated during their marriage must be identified and divided, and a determination must be made as to whether one spouse should pay support or alimony to the other spouse. Finally, if the parties remain separated for at least one year, they will be entitled to obtain a divorce. Determination of your "rights" requires a detailed analysis of the applicable law and procedure and a thorough understanding of the facts. Deciding the best course of action for you can only be done after extensive consultation and investigation. This brochure is designed to give general answers to some common questions that arise under these difficult circumstances.

WHAT IS A LEGAL SEPARATION?

Spouses are generally considered to be "legally separated" when they have signed a formal separation agreement or when they have been ordered by a Judge to live separate and apart (an order called a "divorce from bed and board"). Separation agreements usually provide that the couple consents to living separate and apart, and may also resolve some or all of the other legal issues raised by the separation. Because there may be significant legal consequences to leaving a marriage without a written agreement, it is a good idea to consult with an experienced family law attorney before making such a move.

HOW IS CHILD CUSTODY DETERMINED?

Child custody arrangements can take a variety of forms. The children can live primarily with one parent and have periodic "visits" with the other parent (such as alternate weekends and holidays). Alternatively, the parents can share custody on an equal basis, or on some other schedule that allows each parent to spend substantial amounts of time with the children. If the parents are unable to agree on a new living arrangement for their children, a District Court Judge will make this decision for them, after conducting a hearing. At this hearing, the Judge will attempt to determine what arrangement is in the "best interests" of the children, and will usually take into consideration each parent's prior role as caregiver, relationship to the children, work schedule, living arrangement and parenting skills.

In most cases, the parents are able to agree on a custody arrangement outside of court. In Forsyth County and in several other counties in the State, the parents are required to attend a custody mediation session before they can bring their case to court. During this session, the parents will meet with a trained mediator who will help them focus on their children's needs. Alternatively, many parents seek the assistance of a child psychologist or other counselor in making this important decision. An experienced family law attorney can explain these various options to you and be your advocate if the case goes to court.

HOW MUCH CHILD SUPPORT SHOULD BE PAID?

After the custody arrangement has been determined, an appropriate amount of child support must be set. If one parent has primary physical custody, the other parent will generally be required to pay support. The precise amount is usually determined by application of the North Carolina Child Support Guidelines, which take into consideration the incomes of both parents, child care and health insurance expenses, and any extraordinary needs of the children. There are instances, such as when the parents' joint income exceeds $240,000.00, in which the Guidelines do not apply and child support is based on the particular facts of the case. Most parents are able to reach an agreement on child support, but if they are unable to do so, a District Court Judge will set the amount. An experienced family law attorney will analyze the facts of your case and advise you as to the appropriate level of child support.

WHO MUST PAY ALIMONY OR POSTSEPARATION SUPPORT?

If one spouse is considered to be economically dependent upon the other, he or she may be entitled to an award of alimony and/or postseparation support. The determination of dependency involves consideration of each party's earned income and earning capacity, economic circumstances, health and child care responsibilities, and the parties' accustomed standard of living. A spouse need not be totally dependent upon the other spouse in order to receive support.

Postseparation support is a form of temporary alimony which is usually ordered or agreed upon shortly after the separation of the parties. It is intended to enable the dependent spouse to meet his or her normal financial obligations while the other legal issues are being resolved. If the parties are unable to agree on the payment of postseparation support, a District Court Judge can make the decision after conducting a brief hearing.

Alimony is generally longer term support to the dependent spouse. Alimony can be paid for a specified term or indefinitely, although it will normally end if the dependent spouse remarries. In awarding alimony, a court will consider the relative incomes and earning capacities of the parties, their monthly living expenses, their net worth, and other factors. The Court can also consider any marital misconduct, such as adultery, committed by either of the parties. The amount and duration of alimony awards vary widely depending on the facts of each case. It is therefore critical that you obtain the advice of an experienced family law attorney before making any decisions concerning alimony.

HOW IS PROPERTY DIVIDED?

In North Carolina, the distribution of property and debts accumulated during a marriage is governed by the Equitable Distribution Act. In general, any property acquired by either spouse prior to the date of separation is considered "marital property" and subject to division. However, some assets, such as inherited property or income generated by property owned before the marriage, is considered the "separate property" of one spouse. The classification of property as "marital" or "separate" is often a difficult task and requires a thorough knowledge of the applicable statutes and legal precedents.

Once the marital property has been identified, it must be valued. This too can be a difficult process, particularly when a professional practice, small business or retirement plan is involved. Valuation experts may need to be employed, and their opinions may vary dramatically.

Finally, the marital assets and liabilities must be distributed "equitably." In many cases, an equal division is considered to be equitable, but a Court may consider a variety of factors - such as the relative incomes of the parties, their separate estates, their health, and their contributions to the career of the other spouse - in awarding an unequal distribution.

Equitable distribution cases are among the most complex lawsuits handled by the judicial system. Nonetheless, most cases are settled outside of court. In every case, it is essential that you have your situation assessed by an experienced family law attorney. Your attorney will conduct a thorough investigation into your marital estate and advise you as to reasonable settlement terms. If you and your spouse are unable to reach a settlement, your attorney will persuasively present your position to the Judge.

HOW DO I OBTAIN A DIVORCE?

In North Carolina, married couples can only obtain a divorce after having lived separate and apart for one full year. It is not necessary that the parties have a "legal separation," as long as they have been physically separated for the entire time. At the conclusion of this one year period, either party can file a lawsuit against the other party requesting a divorce. The divorce process takes about two months and can be handled without a court appearance by either party.

WHAT IS A SEPARATION AGREEMENT?

A separation agreement is a contract between a married couple settling some or all of the issues raised by their separation. These agreements typically state that the parties agree to live separate and apart, and may also provide for the custody of children, the payment of child support and other child-related expenses (such as college costs), the payment of alimony and the division of the marital assets. Because of the importance of these issues, separation agreements should be drafted by an attorney and you should consult an attorney before signing such an agreement.

WHAT IS A "PRE-NUP?"

Many couples contemplating marriage wish to agree in advance on the manner in which their property will be divided in the event of divorce or the death of a party. A typical pre-nuptial agreement will provide that any property owned by a party prior to the marriage shall remain that party's property in the event of divorce. The agreement may also state that property acquired by a party during the marriage shall remain separate unless specifically designated as marital and that neither party shall make a claim for alimony if the marriage fails. Because these issues may have significant long-term consequences, you should consult an attorney before signing a prenuptial agreement.

WHAT ABOUT LEGAL FEES?

Family law matters are handled on a hourly fee basis or on a flat fee basis. If you agree to pay an hourly fee, you will be sent monthly statements showing the amount of time spent on your case and the activity engaged in by your attorney. Usually, you will be asked to pay a "retainer fee" or deposit which will be held in the attorney's trust account and applied toward your monthly statements. You may also be asked to pay a minimum fee.

If you are charged a flat fee, your total fee for the particular matter to be handled will be established at the outset of the case. Generally, this fee will be payable before work begins.

In some cases, such as claims for child custody, child support and alimony, the Court may require one party to pay all or a portion of the other party's attorney fees. The amount of these awards vary widely. An experienced family law attorney can advise you as to whether your case is one in which an award of attorney fees is likely.