When people first come to our office, they are often confused about their legal rights and obligations surrounding the divorce process, property division, child custody, child support and alimony. With all the misinformation out there, it is no wonder. TV, movies and the Internet are ripe with family law urban legends.
At The Law Office of Bryce D. Neier, PLLC, our attorneys will explain your rights and responsibilities to you in terms you understand. We want to make sure you understand the law as it applies to your situation.
For more information about common family law myths, read below. You can also contact our office at 800-332-2807 to discuss your situation in detail.
Myth V. Fact
Dads Don’t Get Custody.
This is one of the biggest family law urban legends. The law does not favor moms over dads. In North Carolina, lawmakers and judges recognize the important role both parents play in their children’s lives. The courts determine custody based on what is in the best interests of the children, and that could mean living full time with dad.
Whoever Files Divorce First Has The Upper Hand.
This is a huge myth. It makes no difference at all who files first.
If I Move Out Of The House My Spouse Gets To Keep It.
This is false. Leaving the family home does not mean you “abandoned” your right to it. You may have left the house because of domestic violence or your spouse or significant other was making your life a “living hell” leaving you no choice but to depart. Even if the court gives the house to your spouse, you could be given other property or cash equal to your share of the home’s value, and/or credit for all monies you have paid toward that particular marital asset and martial debt.
Men Always Have To Pay Alimony And Child Support.
This is a huge myth. Alimony is typically awarded to the financially dependent spouse — male or female depending upon all the financial factors the Court considers at trial.
Today, the majority of women are in the workforce — some are even their family’s primary breadwinner. The law says alimony may be awarded to the financially dependent spouse, male or female. That means sometimes women will be the ones paying alimony.
Child support is calculated by a mathematical formula based on the incomes, any extraordinary expenses, and the particular custody arrangement. Child support is paid to the parent with primary custody — if a parent has primary custody of his children, he or she can expect to receive child support. There may be some situations however, that even if you have primary custody, the Court may not order the other parent to pay child support based upon exigent financial circumstances, but this is rare. In shared or split custody arrangements, there are different child support formulas for these child custody arrangements.
If A Parent Doesn’t Pay Child Support, He/She Doesn’t Get To See The Kids.
This is untrue. Child support and custody — while related — are not dependent upon one another to have custody and visitation with your child or children. Just because your ex isn’t paying child support doesn’t mean you can withhold visitation time with the kids. The best way to get your ex to pay is to apply for enforcement help with a lawyer who can help you take the proper legal steps to enforce payment.
My Pension Is Mine.
Unfortunately, this is a family law myth. There is a good chance your pension or other retirement accounts will be divided between you and your spouse. The direct payment and division of retirement benefits is handled through what is called typically a qualified domestic relations order (QDRO) or other types of special retirement division orders depending upon the employer (state, federal, or private) . However, note that in some types of retirement plans, there may be other required different orders to allow you to get your direct share of a pension.
All Our Property Will Be Divided 50-50.
This is a family law urban legend. North Carolina is not a community property state, so marital assets aren’t automatically divided 50-50. Instead, the court looks at a long list of factors, and divides property based on what is most “equitable” or fair. This is called Equitable Distribution and it is completely different from community property states. North Carolina law allows for an unequal division of assets and/or debts in favor of one spouse over the other spouse , but the Courts of North Carolina must make specific findings in the court judgment/order as to why the unequal division is warranted or face being reversed by the North Carolina Appeals Court.