Jim Siemens

Certified Family Law Specialist

From a paralegal continuing legal education seminar presentation by Jim Siemens September 24, 2010:

What is abandonment?  Termination of the marital relationship without justification, without the consent of the other spouse, and without the intent of renewing the marriage.

How is separation defined in North Carolina?  Must be more than discontinuance of sexual relationship and implies living apart such that the community can see that the parties are no longer living together.  One party must have the intent to remain separate and apart.  Even after physical separation, if intent can’t be discerned, the parties may not be separated.

What constitutes reconciliation?  Resumption of the marital relationship.  Isolated incidents of sex post separation are not enough to constitute reconciliation.

What rights do parents have to custody in North Carolina?  Parents have the paramount constitutional right to custody in North Carolina.  There is a grandparent visitation statute but the relief grandparents have is limited and in an intact family, grandparents have no right to seek visitation.  Parents can abrogate their constitutional rights by acting inconsistently with those rights.

What rights do third parties have to custody in North Carolina?  Third parties can seek custody when parents are not available or when the parents have abrogated their constitutional rights by being unfit, or acting inconsistently with their rights as parents.

What discretion does the District Court have over custody decisions in North Carolina?  The Court is guided by the best interest standard which is the polar star of the custody inquiry.  However, before third parties can argue best interest, they must overcome the paramount constitutional rights of parents.

Would marital misconduct be relevant in an equitable distribution trial?  Marital misconduct is not relevant to equitable distribution in North Carolina.  However, the use of marital funds during and after the marriage may be relevant.

Would marital misconduct be relevant in a hearing on post separation support?  Only if the supporting spouse wishes to raise marital misconduct as a defense to paying support.  The supporting spouse controls the inquiry into fault in a post separation support hearing.

Would marital misconduct be relevant in a hearing on alimony?  Yes, and abandonment is a form of marital misconduct.

How are these forms of support determined in North Carolina?  Amount and duration of alimony in North Carolina are discretionary, though the Court is guided by factors listed at NCGS 50-16.3A.  Spousal support is to be determined with consideration of the income and earnings of the supporting spouse, and need of the dependent spouse.

How is child support determined in North Carolina?  Child support guidelines are typically used to determine child support, based upon an income shares model.  Guidelines are expected to change in October of 2011.  There is a growing body of case law suggesting that parties can contract to provide for the reasonable needs of their children.