Pre-emptive Advice Desired


#1

It is very difficult to give advice or input on a hypothetical situation but since NC laws are pretty clear then I’ll give it a shot.
NC is a no fault state, which means that there are only two reasons divorce is granted; 1) One year and one day of living separate and apart from one another, and 2) incurable insanity. There are no other reason needed. If you make substantially more money than your spouse, he/she could file for post separation support or alimony. An affair on either part would affect this. Equitable distribution is often not affected by an affair. If you have an inheritance given solely to you or property that was purchased prior to marriage then it would not be included in equitable distribution. Otherwise, all marital assets and debts are divided equally or however you two agree to divide them. Any property purchased will have to be deeded in both your names. Any bank accounts including retirement would be divided if the amount was invested during the marriage. Anything invested prior to marriage would be considered separate. For example, you put $5000 into a retirement fund before you marry and after marriage continue to put more into the fund. The initial $5000 would be your money but all the other would be divided. The same is true for your spouse. I am not sure about a school loan…but credit debts would be considered marital up to the date of separation.

Child custody is determind due to the best interest of the child and that has little to do with income. The best interest of the child is to have both parents as active and involved in their lives as possible. Who can provide a more stable home life has more influence than who can provide the bigger home. The fact that she is on antidepressants and drinks daily may have some influence on this though it’s difficult to say how much since you would have to show proof that this would affect the care she could give the children. If you have one drink in the afternoon to unwind, that is different than drinking a bottle daily…which could affect her ability to drive, attend work, and “care” for the children in general.
Child support is based on the number of overnights with each parent, the parents incomes, insurance and child care costs paid, and other prior child support obligations. If you retain joint legal and physical custody with equal time, which is the best situation for the child, then unless you and your spouse make exactly the same amount of money one will pay child support to the other. There is a calculator on the home site that shows what you would pay in any given situation.

My suggestion is that if things are working fine finacially the way they are, and you have no issue with continuing to pay the mortgage and utilities then I would have to wonder, were I your wife, why you suddenly started having me pay more after this long. This may cause problems that are not there now. If you are considering what may be down the road, there’s no way to know that. If you try to set aside money for the possibility of divorce later, that money is considered a marital assets and your spouse would have equal right to it also. You are asking for advice on how to handle this to reduce the emotional “sting” of a situation. My advice, realize that a marriage is a partnership and that you are equally entitled to your share of that partnership, the good (assets) and the bad (debts), including the children. The courts will not care that you put in 85% while your wife only contributed 15%. It’s a partnership and will be divided. If you want to sit down and write up a “In case” agreement and have your wife sign it and get it notorized, then I would say that it would hold up. I do not know if there’s something legally that can be drawn up. My suggestion is that you talk with your wife and let her know that you are concerned with this. She may have some of the same worries…Just some things to think about.


#2

Excellent answer, thanks.

Why does one pay support to the other if both have the kids equal time? Seems both are impacted financially identically? It’s not kids that make you need a home and utilities and transportation, you need those things anyway?


#3

The ideal situation would be that the children would stay with you one week and your ex the next and you each pay while the children are with you. Things like insurance, medical and dental, clothes, school expenses would need to be agreed on. If you and your spouse/ex agree to these terms then you agree and that is the way it can be.
If you do not agree and take custody and child support to court then the courts are going to follow the guidelines set by the state. If one parent makes considerably more than the other, the child support payment would more or less be the difference. Simplified, the state says it takes $100 to raise a child per month. You provide 60% while your ex provides 40%. Since your ex can not contribute as much as you for support then you would be paying her the difference to make the amount the state has set for your child(ren).
An agreement between the parties can take care of the need to have the state dictate your children’s fate and your finacial future…once it goes to court, becomes a court order, it’s difficult to get the ball to stop rolling so to speak…


#4

That sounds very reasonable, thank you.


#5

There is no agreement that you can make now regarding custody now that would be enforceable in the future. Similarly, you cannot make an agreement now regarding child support, this issue will always be up for review by the court. Child support in NC is based on the guidelines. The guidelines determine child support based on the income of each party, the number of children, the custodial schedule, and the expenditures either party makes for day care, health insurance, or other extraordinary expenses. The issues of child support and child custody will always be up for review.

You could execute a post nuptial agreement that dealt with the issues of spousal support and property distribution. I would advise you to do this under the supervision of an attorney. In order for a post nuptial agreement to be valid it must be fair and reasonable. If you execute an agreement that simply says you will each keep whatever is in your own name and neither party will pay spousal support, you run the risk that a court may not enforce it.

Helena M. Nevicosi
Attorney with Rosen Law Firm

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) 9343.0044

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1829 East Franklin Street
Building 600
Chapel Hill, NC 27514
(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.


#6

Hello, and this is my First post ever, I would love some input.

First, I am not now divorcing (that I know of) and have never been divorced. I don’t believe that I would ever personally file for divorce, however I am diagnosing myself with an “every-marriage” at this point. I would not file because, like most gender roles, I invited my wife into my life and have no real expectations of her (aside from fidelity, which has been hit or miss historically on both our sides), and she of course has millions of expectations which I often fail to meet and am required to “make her happy”, if such a thing can be done. I have a million hobbies and am pretty much always satisfied. She’s on anti-depressants since I’ve known her and drinks daily. She is a decent mother though and I have no huge gripes except her fickleness.

Now, we’ve been together since high school, about 17 years, and have been married for 11 years and now have 3 kids. We have separated before, though not really legally, and not all during our marriage.

Financially, it has been feast or famine, without the feasts… and usually have been a couple paychecks from disaster at any given point, but have generally been fine. We are renters and have no real assets worth bickering about.

Now here’s the thing: Let’s say a year ago I graduated with a very specific professional degree that pays an aweful lot of money and bought a really nice house and two really nice cars and developed some savings. NOW she files for divorce! But let’s also say that I jump into a time machine to 3 years ago with this knowledge and come to this board to seek advice as to how to prepare myself from now until then to make sure I don’t get completely screwed and worked absurdly hard just to lose half of everything from that point forward.

That’s where I am now. We are both full time students, I am 2 years from graduating (already finished 6), and she is about a year from graduation to be a teacher. We are both accruing substantial loans, and in my case will be upwards of 200k. She has in NO WAY put me through school, we both work and are both great parents.

So starting now, what is the BEST advice if you could somehow know in advance what will happen, including what state I should be living in for the best laws, how to invest, how maybe NOT to buy anything for a long time etc…

Is there a Post-nup that can be done? I would normally pay for the home mortgage and utilities and let her use her entire income for just her car payment and anything else she’d want to do with her income, but if I was going to lose half anyway, should I start right away having her pay towards the mortgage etc…? Also I would want the kids as badly as she would. Isn’t there ANY way to state that whoever can best financially (assuming emotional equity) provide for the kids should get custody, and whoever is willing to forgo payment transfers from the other for the sake of simplicity should get extra consideration for custody? What practices can I implement that will reduce the emotional sting later for the best possible outcome?

I know I should speak to an attorney probably, but this is nothing serious now and I’d love some insight now. Also, I’m in NC now if that matters.

Thanks everyone!!