Contesting absolute divorce


#1

It is futile to file an action for divorce from bed and board as you are already separated from your wife, this is an action used to force one party to leave the home. Your attorney is correct in saying that the claim you have is for absolute divorce. You may file and answer to the complaint she filed if you contest any of the allegations contained in the document, however it is not necessary that you file a responsive pleading.
North Carolina is a no fault divorce state which means the actual divorce is granted based on 1 year of separation, without an accounting for fault. Your wife


#2

What can be done about my wife’s affairs? I thought adultery was illegal in North Carolina. Also, my wife lied on court documents. For example, she filed for emergency custody and stated that I was unstable and had to change jobs because of it. But in fact, I switched jobs so I would be able to get my children every other week. This is what my wife stated she wanted in our mediation but obviously she lied about that too. She also said that I was harrassing her co-workers. When in fact, a woman called me and stated that my wife was having an affair with her husband. She told me many things. One was that my wife was the general manager of our local radio station. I went to the radio station and asked who was their general manager. The receptionist stated, “I don’t know.” I asked for my wife’s business card and the business card of a man at the radio station my wife was supposed to be having another affair with. I was given my wife’s business card but the guy didn’t have a business card because he was just an engineer. Then my 5 year old son and I left. Is this harrassment? Also, my wife accused me of child abuse which was found “unsubstantiated” by DSS. The whole story was a complete lie. But the judge signed the emergency custody order and I lost my kids the entire summer. I did not have a hearing or anything. I didn’t not get to present my side of the story. This is how my entire separation and divorce proceedings have been. My wife lies. I have no opportunity to give my side of the story and I get screwed. Is this how the North Carolina legal system works? What can I do? My wife had many affairs. I was nice and thought we were going to go our separate ways because that was our verbal agreement. I wasn’t going to bring up her affairs or anything. Then she turns around and takes my kids, my paychecks, my retirement, my dogs, and basically, my life.


#3

His wifes affairs, MUST be relevant to the divorce, otherwise, they wouldn’t be getting a divorce… Correct?


#4

I take it Beatrice is apart of BMKDMW?

If you read up on some people who have ask questions like his, you will see that all he can do is sue the person she had the affair on. It is costly and alot of time to do so. I am sorry you two are going through all this.


#5

Isn’t adultery illegal in North Carolina? What are the legal ramifications?


#6
quote:
[i]Originally posted by bmkdmw[/i] [br]Isn't adultery illegal in North Carolina? What are the legal ramifications?

Technically, adultery is illegal, but is virtually NEVER prosecuted.

As far as the divorce itself goes, yes, listen to Ms Clarey, she is right. Adultery has absolutely NO bearing on whether or not a divorce occurs. It is also not legally a factor in equitable distribution or child custody.

If proved, adultery can come into play in certain circumstances with alimony. If the supporting spouse (the major breadwinner in the family, male or female) has committed adultery, then alimony is paid to the dependent spouse. If the dependent spouse committed adultery, then there is no obligation for the supporting spouse to pay alimony. If both commit adultery, then it’s a wash. (NOte that alimony payments may be ordered to cease if the ex is cohabitating with a member of the opposite sex or remarries.)

Child support is supposed to be calculated based upon percentage income earned by each parent and the number of overnights the child spends with each parent. Adultery will have no effect upon this as it is not the child’s fault that a parent committed adultery.

You can respond to the summons for divorce and ask for more custody of your kids, which should reduce the amount of child support you pay. However, be aware that courts tend to stick by whatever the status quo has been prior to the absolute divorce. Yet, you may also make a case if you have PROOF that your ex is bringing home different guys on a regular basis, that the environment at her home is unhealthy and potentially dangerous for the children and therefore you should be awarded more custody.

If your wife has been willing to play things as she has, then be prepared to answer all of the charges that she has already laid at your feet and more. Where possible provide proof that they are untrue. (Saying DSS couldn’t find anything and a cup of coffee will get you a cup of coffee, so get documentation whenever and wherever possible.) Keep either recordings of all phone conversations with your ex and/or phone logs with date & time plus notes on the discusssions or make sure all communication is through email. Keep the emails.

Do not get emotionally involved with anything your wife does or says. Get proof and be prepared to present it when you need it to protect you. People sometimes use emotions as a weapon, so refuse to be swayed no matter what outrageous allegations are made and stick to the facts. Be patient and calm.

Most of all, let the affairs go. I know it hurts and I know it eats at you, but your kids are more important now. Do whatever it takes to make sure that they are in a good environment and that you have time with them.


#7

Adultery is illegal in North Carolina however illegality involves prosecution by the state in a criminal action. Adultery has not been prosecuted in many, many years.

You may consider pursuing a civil action against the men your wife was with, either alienation of affection which requires proof that you had:
-A marriage which entailed love between the spouses in some degree;
-That the spousal love was alienated and destroyed; and

  • That the 3rd party

#8

Now my wife is suing me for back child support and attorney’s fees. My attorney wanted me to sign an agreement to pay $6,000.00 in back child support and $2,000.00 for my wife’s attorney’s fees to be paid in the next 30 days. The child support would add $200.00 a month onto the $908.00 that I already pay for child support. I said no it needs to go to a hearing because I can not afford it. My attorney kind of got huffy with me. My wife’s attorney then only asked the judge for $3,000.00 for back child support and $2,000.00 for attorney fees. She stated we had been to court 3 times for child support when actually we had only been twice. She then stated I was making a lot more money than I actually do. My wife attorney stated I was “certainly able to afford it.” My attorney did not say anything on my behalf except that I could not afford it.

The reason we were there twice for child support was because the first time we went to court, my attorney was trying to talk to my wife’s attorney and my wife’s attorney would just cut her off. When my attorney turned away from my wife’s attorney, my wife’s attorney would make faces at my attorney. My attorney said if she didn’t want to talk, she would file a contempt of court against my wife. My wife’s attorney just laughed. My attorney had to leave the court room to make a copy. When she left the court room, my ex’s attorney stated loudly to my ex that my attorney was incompetent and probably couldn’t figure out how to fill out an contempt of court and they both laughed. I then started hyperventilating and had a panic attack. I had to go to the hospital because I was having chest pain and dry heaving severely.

Also, they were asking for back support from May until October. May was when my wife filed the previously mentioned emergency custody order. I did not have any type of hearing or anything. I did not have my kids at all the entire summer. The emergency custody allegations were simply untrue and I did not have a chance to defend myself. I had my kids half time before this.

What can I do? Can I appeal the judge’s ruling if he makes me pay back child support and my wife’s attorney fees? Can I use this information in this text as a defense? Is there an amount that I can’t afford? Or will I be left homeless and in bankruptcy? I had to quit graduate school and had to take on a second job to help pay the original child support. I think my wife’s attorney is trying to include my second job into my original earnings. My second job is only PRN or as needed. I am not guaranteed hours. I have been working from 0 to 18 hours a week. I don’t think I can continue working extra. I don’t think I should have to work two jobs and hardly ever see my children because my wife had affairs.


#9

Child support is not affected by the emergency order. If you have a child support obligation you are behind on you need to catch up, or settle the issue with your ex and her attorney. An appeal of a ruling on back child support has little chance of being successful.
Your expenses and debts are not taken into account for calculations of support. Child support is based on your income from all sources, including the average you bring in from your second job.

I understand you are angry and hurt, but your wife


#10

I did not have my kids at all for three months during the summer because of the emergency custody order. I was never advised about a hearing or anything. My attorney wanted me to restart my relationship with my children so she had me sign an custody agreement saying that I would only get my children for 2 days every other weekend which was better than not having them at all. But I still was not happy with this at all. She said we would put a modifier in for joint custody in a month or two. She said this would be better because I didn’t have my children at all over the summer. Well, it has been over 3 months now so I don’t think she filed the modifier. From what you are telling me, the best thing that I can do, in my situation, is to get joint physical custody. Other than making sure my attorney filed the modifier, is there anything else I need to do? Should I request primary physical custody in hopes that I get joint physical custody? My wife’s attorney seems to ask for things in excess to get what she wants. My absolute divorce should be finalized on January 22, do I need to get something done before that? Will it get harder to get my kids back after the divorce is finalized or does it matter? Also, do I have to sign the absolute divorce? I was told that I didn’t have to. I really don’t want to sign agreement to a no-fault divorce so I really did not want to sign it.

I have asked my wife for my kids extra during the week for dinner but my wife always says, “No, we have to follow the rules.” I have now stopped asking because it is no use trying.


#11

You mentioned back child support as if back child support could be awarded if I was behind on my child support. My child support did not start until November but they filed for back child support starting the month of May when the emergency custody order was initiated until September. The amount was not calculated. My wife filed for $10,000.00 plus attorney’s fees. Then wanted me to agree to $6,000.00 plus attorney’s fees. I said, “No, it would have to go to a hearing.” But then during the hearing, my wife’s attorney asked my wife, who was on the stand, what amount was fair? My wife said, “$3,000.00” and her attorney’s fees of $2,000.00. So there was no calculation. It was based on my wife’s estimates of what was fair! So do I have to pay back child support during these months, May through September when child support was not awarded until November?

Also, if the child support documents were signed by a judge at the end of November and the child support is due at the first of every month, when does it take effect? Is it retroactive to November 1st or would it start December 1st? I think I got screwed again!


#12

You need to contact your attorney and let her know that you wish to proceed with the modification.
I cannot say what the best thing for you to do as far as the custodial schedule goes as I don


#13

First of all, thank you for the information that you provide. I have learned a lot and I’m a little less stressed.

I have left a phone message and I e-mailed my lawyer requesting that a child custody modifier and a contempt of court be filed by the end of next week. Is this unreasonable? This has been our plan since September when my lawyer talked me into signing our current agreement. She said we need to wait 1 or 2 months. It has been four months now. I have so much evidence for contempt of court such as police reports, detailed documents, and pictures. I don’t know what she is waiting for. If she doesn’t file these for me, can I ask her for a refund so I can find a lawyer who will actually go to bat for me. And would it be better to file both at the same time because the contempt of court has to do with my visitations. I would think it could influence the child custody modifier.

Also, I have a hearing for the NC Child Support Agency to take the child support payments directly from my paychecks. I had been told by everyone that I should not allow them to do that because they will take my vacation and sick time. I have been sending cashier’s checks via certified mail and I am actually ahead of schedule. I sent the February 1st payment today. What can I do to prevent them from taking the payments directly from my paychecks?


#14

Custody is always an urgent issue for parents, as it should be. I am not sure what your lawyer


#15

If there is nothing I can do about wage withholding, why is there a hearing?

Also, I have good news. I don’t have to pay my wife’s attorney fees.


#16

My apologies. Mecklenburg County does allow wage withholding if requested by the payee. Your county may be different. If you are having a hearing, you should be prepared to offer evidence of how wage withholding will negatively affect you, and demonstrate that you have in the past, and will continue to pay child support timely on your own accord.

Erin E. Clarey
Attorney with Rosen Law Firm

Raleigh Office
4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.787.6361 main fax

Charlotte Office
301 McCullough Drive
Suite 510
Charlotte, NC 28262
Main Phone: (704)307.4600
Main Fax: (704) 943.0044

Sutton Station
5826 Fayetteville Rd. Suite 205
Durham, NC 27713
Phone: (919) 321-0780

ROSEN.COM

The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.


#17

My wife had multiple affairs. She has admitted to three. We were separated in July 2007. My wife left the home with my three children. My wife stated she didn’t want anything such as child support and she said I could have the children any time that I wanted which was half of the time. After our separation, a woman called me and stated that my wife was having an affair with her husband and stated that my wife was on myspace.com looking for men to have sex with. She stated she had e-mails from my ex to her husband. But stupid me, I let my guard down as we were waiting our year of separation to get divorced and my wife filed a divorce from bed and board against me. She falsely accused me of domestic violence. She eventually dropped the case because my attorney answered her complaint with all of her affairs and she had absolutely no proof of domestic violence. But non-the-less, my attorney has been absolutely worthless. I got royally screwed on equitable distribution and child custody. I only get my children four days a month and I have to pay $908.00 a month in child support which is basically one of my paychecks per month. But since she dropped the divorce from bed and board, I have been asking my attorney to file a divorce from bed and board against my wife but she wouldn’t. She kept saying that I have to settle for an absolute divorce. My ex has finally filed for an absolute divorce. I have 30 days to answer. The papers say I have options such as to answer or to counterfile. Is there anything I can do? My wife has committed adultery and my attorney says there is nothing I can do because she filed first. My ex is going to get away scott-free and completely ruin me financially.


#18

The child support hearing was only so I would send the payment to Raleigh and then it would be distributed to my ex. I was never told what this was for except it was a motion to intervene. I thought this would be good idea so I don’t have to get a cashier’s check (I don’t want my ex to have my personal checking account numbers) and to pay $5.32 to send it 1 mile via certified mail. I sent the first child support check via regular mail and she said she never got it. My attorney did not show up for the hearing and hasn’t called me back in almost two weeks. I am currently, without any success, looking for another attorney. I have called the referral line 1-800-662-7660 but it just rings busy.

Also, I already sent February’s payment directly to my ex. I have proof. I have copies of the cashier’s checks and return receipts from the certified mail. Yesterday I got a letter stating I have to send my February payment to Raleigh by 2-1-09. I have called and left a message for my case manager but she hasn’t called me back. Do I get credit for this ? I don’t want to get in trouble. And I can’t afford a double payment. What should I do?


#19

You will need to speak with your case manager directly. They may require you to send or fax copies of the documentation you have which proves you have paid February’s support.


#20

Is there any way to have equitable distribution done over again after an agreement was signed? My ex is in contempt of this agreement by the way. We were in mediation for 3 hours and the mediator really confused me and my attorney was no help at all. So I got stuck with all of the martial debt and now I can’t afford it with having to pay child support too. I am now working two jobs which I don’t think I can do much longer and I can barely pay my bills.

Also, my ex filed an ex-parte against me. She falsely accused me of threatening to kill her. She is a master manipulator. My attorney did not show up for the hearing. Even though I told the truth, the ex-parte was granted against me for a whole year. I haven’t heard from my attorney in over 3 weeks. I had been leaving her voicemails, faxing her documentations, and e-mailing her about what has been going on between my ex and myself but she never responds. What is the proper way to fire her and ask for a refund especially since I can not get a hold of her?

I live in the NC mountains. There are very few attorneys who practice family law in my county. I did find a lawyer two counties over that would take my case but asked for $10,000 up front in trust which I can not afford. I am lucky to make my house payment. I have contacted a law firm of criminal lawyers in an neighboring county. I was told they would talk about it and call me back but I haven’t heard from them yet. I also contacted a divorce lawyer in another county but he hasn’t returned my call. I have called the NC attorney referral hotline but it only rings busy. Do you have any suggestions?

My ex filed for absolute divorce on December 22, 2008. I did not contest the information so I thought it would be signed by a judge in 30 days. I asked the clerk of court about this. She said my ex would have to come in and request that a judge sign it. I don’t think my ex will do this any time soon. I think she will drag it out like everything else. I have been separated since mid July 2007. What can I do since I can’t find a lawyer?

Thanks!