My spouse cheated, how can I get a divorce and sue the "home-wrecker?"

Nothing will appease the anger and hurt that you feel as a result of your spouse's infidelity. No amount of money will help you get over the feelings of betrayal, however, the courts in NC may assist you in bringing a claim for money damages against your spouse AND their new flame.

Against the Spouse

You may have a claim for alimony and/or spousal support when you are filing for your divorce. While a NC divorce is awarded regardless of the fault of either party, a claim for alimony is fault-based. The court will determine whether or not your spouse cheated during the marriage, therefore causing the divorce, and will award you alimony payments based on each spouse's contributions to the marriage, length of marriage, and the severity of the infidelity. While you are awaiting an award of alimony, you may qualify for spousal support if your spouse supported you throughout the marriage. Your spouse may have several defenses and there are issues of timing when filing for alimony  so give me a call for more information at (919) 321-6569.

Against the Home-wrecker 

• Alienation of Affections Civil Claim 

NC is one of the few states that still observes the claim of Alienation of Affections. It punishes the "home-wrecker" for interfering with a marriage that was once happy and enjoyable. It does not require a sexual relationship as meddling mother-in-laws and neighbors may also be sued under this claim. However, the actions that broke up your marriage must have happened before you all separated. Once you have proven that their actions caused your marriage to break up, you could recover money damages from the "home-wrecker."

• Criminal Conversation Civil Claim

Criminal Conversation is a cut and dry claim for "You slept with my spouse, now pay up." It is a strict liability claim so it is no defense to respond "I didn't know he was married." Even if he/she didn't know they were sleeping with a married man/woman, they can still be found liable. The acts must have occurred before you all separated, and once found liable, the "home-wrecker" will have to pay money damages to you. There is a short statute of limitations period and you may also have a claim for additional punitive damages so contact me for more information at (919)321-6569, nastasia@kisalawatkins.com, Kisala Watkins Law Group, PLLC.

Do I have to get legally separated in NC before getting a divorce?

No, in NC there is no procedure for being "legally separated." The court will consider the date in which either party left the marital home with the intent to end the marriage. You must, however, be separated for at least 1 year before you can be divorced in N.C. (unless the person is mentally impaired, then there are additional requirements).

You can, however, petition the court for a "Divorce from Bed and Board" which is essentially a legal separation. While not required, this may protect you from a future claim for alimony if your spouse can show that you abandoned him/her. In N.C. alimony is fault-based, so if you can prove that your spouse was at fault for the divorce, you may be awarded alimony as a "penalty" for these actions. However, the court will generally assign fault to one party and consider the other party as having no fault affecting future alimony claims, so this a risky option. 

In my opinion, a better option is a separation agreement because both parties have a voice without a judge deciding their financial future. Separation Agreements can include spousal support, alimony, property distribution, custody and child support. While a judge makes the final decision during a divorce proceeding, this agreement can guide a judge about what is best for the spouses and the children. The agreement also keeps attorney's fees down because spouses aren't fighting over money and property as it is all written down, reducing the number of hearings.

We do flat fee uncontested divorces and separation agreements! If you have more questions or need assistance with a divorce or child custody, give me a call at (919)321-6569. Check out our website at Kisala Watkins Law Group, PLLC.

Can my child’s mother stop me from seeing our child because I do not pay child support?

No. Every parent has a right to the care, custody, and control of their children unless they act inconsistently with this right. If a parent abandons, abuses, or neglects their child, they may lose this right and be restricted to only visiting their child with supervision or not at all (however this is only in extreme circumstances). N.C. does not favor a mother or a father in custody cases. Each parent has an equal right to custody of their child.

Child support and child custody are not related. If you were ordered to make child support payments and are not able to see your child due to non-payment, you can file a lawsuit for custody. The court will only determine what is in the child's "best interest" and will not consider your payment history of child support.

If you are in need of assistance with filing a claim for custody, contact my office at: Kisala Watkins Law Group, PLLC, (919)321-6569, nastasia@kisalawatkins.com

My husband and I just sold our car and he used the money to buy a camper. Is this camper considered HIS property if we get divorced?

The short answer is No. 

North Carolina follows the "Source of Funds Rule" which allows the court to trace back the money used to purchase the property to determine who owns it. The court will then trace back the money used to buy the camper and determine that "marital funds" from the sale of the car were used. Because marital funds were used to purchase this property, it becomes marital property and you both have ownership rights to it should you get divorced. 

If you have more questions, please contact us at Kisala Watkins Law Group, PLLC.(919)321-6569