As a family law attorney in North Carolina, I often hear clients misuse legal terms or misunderstand their meanings. I also often hear clients use terms that are not correct legal terms in North Carolina. My intention with this series of posts is to help clear up some confusion and make it easier for you to communicate effectively with your attorney about your goals and options.

No-Fault Divorce

North Carolina is a no-fault divorce state, meaning that fault is not required for a divorce to be granted. The only thing you have to prove in order to qualify for a divorce, assuming you or your spouse meet the requirements for the court in North Carolina to hear your case in the first place, is that you and your spouse have lived separate and apart for over one year continuously, without reconciling, with at least one of you intending to actually be separated. Separation is usually easy to prove, but there are some circumstances where the date of separation isn't clear or where it isn't obvious whether the parties ever reconciled during the separation period. While you don't need to prove fault for a divorce, bad behavior during the marriage by one or both spouses can still impact things like spousal support, alimony, or property division, so you should discuss the issue of possible marital fault with your attorney.

Separation vs. Divorce

During separation, you are living separately and apart from your spouse. At least one of you intends to remain separated, but you're still legally married. You can't remarry during a separation, and some financial decisions by one spouse might still affect the other spouse. A separation agreement can help set rules during this time if you and your spouse are able to mutually agree on terms. You also have the ability to file many claims during the separation period and prior to divorce, including claims for child custody, child support, post-separation support, alimony, and equitable distribution of property. At least one spouse must file certain claims before a divorce is granted if those claims are ever going to be filed. If you can safely do so, you should consult with an attorney before you and your spouse ever separate. There are things you may want to do, or avoid doing, before separation to help create a better situation for yourself. If you and your spouse are already separated, you should consult with an attorney immediately to know your rights and options.

Contempt of Court

This is a term I hear misused quite often. A person is not automatically in contempt of court just because they do not strictly follow a court order on one or more occasions. For a person to be in contempt of court, there has to be a formal finding by the court, in the form of a court order, that the person has willfully disobeyed a court order that they were capable of obeying. A common example of this would be a parent refusing to pay court-ordered child support even though they have sufficient money available to pay it. Even if you are able to prove to the court that the other party willfully disobeyed a court order that they were capable of obeying, a finding of contempt is still not guaranteed. In some circumstances, a finding of contempt of court can lead to fines, awards of attorney fees, or even jail time, though none of these outcomes are guaranteed. The goal of the court in a contempt action is generally to encourage or force a party to comply with the court orders, presently and in the future, rather than to punish the party for prior violations of court orders. In some contempt of court actions, but not all, the person accused of being in contempt of court may have a right to a court-appointed attorney, but you should not assume that an attorney will be provided for you. If a contempt of court action is filed against you, you should take it very seriously and consult with an attorney immediately.

Domestic Violence Protective Order (DVPO)

Also referred to frequently as a restraining order, a DVPO (domestic violence protective order) is a court order designed to protect a person from abuse or threats by a current or former family member, household member, or intimate partner. A DVPO is frequently referred to as a 50B because the laws which provide for this kind of order are located in Chapter 50B of the General Statutes. 

There may be other forms of legal protection potentially available when the person you need protection from is not a family member, household member, or intimate partner, such as those located in Chapter 50C of the General Statutes which are intended to protect victims of sexual assault or stalking. A DVPO under 50B can also provide other forms of relief beyond immediate protection in some circumstances, including temporary child custody, temporary financial support, use of a residence, or possession of a vehicle, pet, or other property. 

There are broadly two stages of a 50B proceeding, with the first being the possible issuance of an immediate temporary protective order when the 50B complaint is filed and with the other being the possible issuance of a final DVPO following a trial, or with the consent of the parties. Generally, the person requesting the DVPO will have to prove their allegations to the court and convince the court that the issuance of a DVPO is appropriate and necessary in the circumstances.

The issuance of a DVPO can have a significant impact on other claims between the parties, including claims relating to child custody, support, and equitable distribution. If you are considering filing a 50B action against a spouse, former spouse, or parent of your child, you should talk with a family law attorney before filing if possible. If a 50B action has been filed against you, you should also talk with a family law attorney immediately.

About the Author:

David M. Hudson is a NC Board Certified Specialist in Family Law. David enjoys getting to know new clients and learning the particulars of their individual circumstances so that he can better understand what they want and need from him. Maintaining close relationships and regular communication with his clients is key to David’s practice. David collaborates with his clients in goal setting and then works cooperatively with the clients to achieve the goals set.

Disclaimer: All information provided herein is for informational purposes only, and nothing should be taken as legal advice or opinion. All information relates to North Carolina law only. Family law can differ significantly from state to state.