Ask Jonathan Anything: Part 1

Narrator: [00:00:00] Welcome to another episode of Best of Johnston County, brought to you by Breeden Law Office. Our host, Jonathan Breeden, an experienced family lawyer with a deep connection to the community, is ready to take you on a journey through the area that he has called home for over 20 years. Whether it’s a deep dive into the love locals have for the county or unraveling the complexities of family law, Best of Johnston County presents an authentic slice of this unique community.

Jonathan Breeden: hello and welcome to another episode of the Best of Johnson County podcast. I’m your host, Jonathan Breeden, and today we’re going to do a different type of episode. Then we normally do most of the time we do episodes where I interview interesting community members, business leaders local politicians community leaders, stuff like that.

And sometimes we’re going to do episodes like this, which we’re going to call. Ask Jonathan Breeden anything and I’m going to attempt to answer [00:01:00] questions. From Raina, who’s here with me today about questions that we often get in our divorce law practice here in Johnston County. So it’ll be a combination of.

The traditional interview while I’ll interview interesting business leaders and we’ll do a few episodes where I will be asked questions and I will answer questions about custody, divorce, adoption, property distribution, alimony, stuff like that to give some people some information about family law and what the breed law office does for the citizens of Johnson County.

It has for over 23 years. So I don’t know what these questions are going to be. Hopefully I will know the answers. We’ll see how this goes. I think I probably do. And anyway, so great appreciate you coming and helping us out with this today. Of course. Absolutely. All right. You ready? I’m ready.

Number one, how long does the divorce process [00:02:00] take? Oh boy. I, you know, it really depends. Alan, I mean, we’ve been able to get divorces done fairly quickly and some take other times. We’ll start with the divorce itself. A divorce in North Carolina can only be granted after the parties have been separated for a year and a day.

So you cannot file for the actual divorce, which says we are no longer married each other. For a year and a day and then if the divorce itself not the property not the kids But just the divorce is uncontested As most divorces are because most people don’t fight about what the separation date is and so it’s a no fault state You don’t have to have reason for getting divorced The only way to get divorced is to live separate and apart for a year and a day with the intent of at least one of the parties, not both.

Only one of the parties has to intend to remain separate and apart in [00:03:00] order for that separation to be deemed valid and a divorce to be able to possibly be granted. The divorce itself, once you file it, if you’re not fighting about the date of separation, takes about eight weeks. So if you separate today, You would be getting divorced and we’re recording this on Halloween in 2023.

You would be able to file for your divorce on November 1st, 2024, and it probably would be granted sometime around January the 1st, 2025. But there’s a lot of things in what the divorce people, you know, when people hear the term divorce, there’s the divorce itself, I’m no longer married to you, Raina, but there’s also.

All the things that go in a divorce, child custody, child support, alimony, post separation support, division of property, 401ks, IRAs, all of that. That process can start immediately upon [00:04:00] separation. You do not have to wait a year and a day. You can hire an attorney and as soon as you’re separated, You can file for child custody, child support, you can file for alimony, you can file for post separate support, you can file for distribution of the property, and the courts will start your case as soon as you file it, but you won’t be able to file the quote unquote divorce itself for a year and a day.

And that process, the property, the custody, the child support, all of that takes, can take a long time, can take a short time. It just depends on whether the people want to. Agree, do they want to be reasonable? Are they too emotionally involved to, to make a fair agreement for everybody? If everybody can kind of come to an agreement, I mean, we did an entire separation agreement that settled everything, but the divorce.

That’s not normal, but the parties had sat down and met and I knew what the assets were kind of knew what they wanted. And we helped him [00:05:00] out with that. The cases that go to the mat and have multiple custody hearings, a temporary custody, a permanent custody and a property trial and alimony trial, I mean, can take 2 years.

or longer, particularly in Wake County, where the court dates are really far out and they’re getting to be that way in Johnston and Hornet as more people move into the area and we don’t have any more court. So, the answer is, it depends. That’s fair. Two, can I represent myself in a family law case?

You can, I don’t know that I would advise it, but you absolutely can. I always tell people when they ask me that they’re like, I’m like, should you do surgery on yourself? You know what I mean? And the answer is probably no, but no you absolutely can. And there are a ton of assets out there particularly in Wake County where they have a, sort of a pro se.

I don’t know if it’s a [00:06:00] clinic, they have like an office there where they have people that help you fill out the forms on your own. I would say that most people can do the divorce itself. The divorce that we just talked about, the year and the day the very basic, we’ve been separated, I want a divorce.

And the rest of the stuff is either resolved or pending. I would say that most people can do that themselves. The rest of it, I think you should have an attorney. If you don’t have an attorney, the courts have to treat you as an attorney, which means they’re going to hold you to the rules of evidence.

They’re going to hold you to the rules of court. They’re going to hold you to the filing deadlines. They’re going to hold you to the formatting of the filings, all of that, that attorney can help you with. And even if you can’t afford an attorney. To say go litigate or try the case most attorney is including my office for a few hundred dollars We’ll be happy to draft whatever documents you would like to see Drafted or you need drafted and at least they [00:07:00] would be in the correct format.

They’ll have the correct They’ll cite the right law, you can file them yourselves, so you’re not going to be tossed out of court on some sort of motion to dismiss for an improper filing. On a technicality. On a technicality, you just go try the case yourself. So, understand that. But I think everybody should at least go talk to an attorney.

You know, for you represent yourself. I wrote a book divorce law in North Carolina. What you see to know the book is free. You can come by my office at 40 42 and pick it up. I’ll mail it to you. If you call me, you can download it off of my website, or if you want it on your Kindle, you can buy it off of Amazon.

So either way but the info there’s plenty of information out there to help you. So just because you can’t doesn’t mean you should correct. Gotcha. Okay. Number three, can I get alimony and or spousal support? It depends. That’s the answer to everything in law, right? Everything is gray, right? So, you know, everybody says alimony, spousal support, post separate support, you know, [00:08:00] he’s going to pay my bills, you know, that kind of stuff.

It, it depends. The law says, If one spouse is dependent and the other spouse is considered supporting, then yes, you would be entitled to some form of post separation support, which is the precursor to alimony. Post separation support also covers that one year and a day. Where you were waiting to file for the divorce and then alimony is often what you get after that.

And it can be for as long as the court would like it to be the definition of a dependent spouse is a spouse. Gotta have been married. This living together doesn’t work. You actually have to have it to been married. And, is when one spouse after separation is unable to pay their reasonable living expenses on their income.

And post separation support, alimony are [00:09:00] based on their net income. Child support is calculated on your gross income. Your gross income is your total paycheck before the taxes and the insurance and all that comes out. And your net income is what you take home after taxes. So if you gross 4, 000 a month and you net 3, 000 a month and your reasonable bills are 4, 000 Then you have a shortfall of 1, 000 a month and you would be considered a dependent spouse.

The trick is there also has to be a supporting spouse. So the supporting spouse has to have a surplus just like the dependent spouse has to have a short fall. And so. If the supporting spouse makes 5, 000 a month gross and he nets 4, 000 a month and his reasonable bills are 3, 000 a month after he pays child support, if he has to pay child support, then he has a surplus [00:10:00] of 1, 000 because his reasonable bills are three and his net income is four.

And if the dependent spouse that we just talked about, she’s short 1, 000. The court can order the supporting spouse to take his thousand dollar surplus and pay the dispendants or the dependent spouse her 1, 000 short fall. One of the catches to all of this is what you think as either spouse is a reasonable bill is not what a judge may think is a reasonable bill.

Unfortunately or fortunately, I don’t know, probably unfortunately, most Americans. 54 more percent are living paycheck to paycheck as a married couple, which means they don’t have a ton of savings. There’s not a lot extra. It costs anywhere from 40 to 50 percent more to live apart than it is together.

When [00:11:00] you separate the marriage or the coupling of the spouses does not automatically get 50 percent more income, which means. Everybody’s life is going to change significantly. If some new money isn’t found and you know, everybody’s like, well, I get to live in the manner which I was accustomed.

Yes. And no, yes. If there’s enough money to go around and there’s enough money between the two of you to support two households, but no, if it’s not because they’re not going to make the higher earning supporting spouse. Live under a bridge or in a box that person is going to get to go pay 1, 500 a month in rent.

Just like you’re paying a 1, 500 a month mortgage. The spouse, the supporting spouse is going to get a power bill, a water bill. He’s going to get food. He’s going to get a car payment. He’s going to get car insurance. [00:12:00] He’s going to get health insurance. He’s going to get the child support. If he has to pay that, he’s going to get uninsured medical bills.

All of these things are going to count. He’s going to get haircuts before to determine what his reasonable bills are. Well, for most, in a lot of cases. When you do all of that, he or she, I shouldn’t say just he, but oftentimes it’s a he, doesn’t have any money left over to pay spousal support. And the other side is almost always dependent and does not have the money to maintain the bills that they had.

But if he doesn’t have it, the court can’t order him to give it. And so that is what is so difficult in these cases is in most of the cases that we see in our office. There’s not enough money to support two separate households. In most cases, they’re doing a good job trying with two, two incomes or whatever they have [00:13:00] to support one household.

And so that’s where I think there’s a misconception as to how you get it or what it’s for. And for how long we don’t have any child support or alimony charts, Raina in North Carolina, it’s just whatever the judge decides, looking at the financial affidavits. And so we have these sort of unwritten rules, half the length of the marriage, stuff like that.

But. That’s not a given the judge can do whatever they want to do. So they can do the entire longer than the length of the marriage, the entire length of the marriage, or maybe 12 months. Most judges now, because we have this unemployment rate of basically zero C post separation support and alimony is largely.

What can we do to help this spouse get back in the workforce, particularly if she’s been out of the workforce, raising children and stuff like that to allow them to have time to get retrained and you can get rain, get retrained real quickly now with the community college system, whether it be [00:14:00] Johnson Community College, Wake Tech, Central Carolina or, or any of the universities around here from Mount Olive to Barton, NC State to Meritive College.

I mean, you can get trained. Thank you. There’s also short term trainings like you know, my computer career and you know, varying people that do CNA test treatment. I mean, I mean CNA licensing and all of those types of things. So my experience has been that the amount has not been as high because.

The cost of living for the supporting spouse has gone up and the length of time I think has gotten shorter over time because it is much easier now than it was when I started 15 20 years ago for that spouse that may not have been in the workforce or not working full time or whatever to quickly get back in the force earn a full time salary and be able to pay their own bills.

Gotcha. Okay.

Have family law questions? Need guidance to navigate legal [00:15:00] challenges? The compassionate team at Breeden Law Office is here to help. Visit us at www. breedenfirm. com for practical advice, resources, or to book a consultation. Remember, when life gets messy, you don’t have to face it alone.

Jonathan Breeden: All right. So for what are the different types of custody? There are two different really types of custody. And I think people get them mixed up. And and I know it would be easy to do. And that’s why I spent a couple of chapters of my book, Divorce Law in North Carolina, what you need to know about it.

So there’s two types of custody. First, there is physical custody. Where are the children? Going to live, where are they going to spend their holidays, their weekdays? Where are they physically going to be? Whose house are they going to be at? Whose customer are they going to be in [00:16:00] 365 days a year until they get out of high school?

And there’s two types of physical custody. There’s, well, there’s three types of physical custody. There’s primary, there’s secondary and there’s joint. So if one side has more time than the other side, significantly more time than the other side, they are the primary custodian. And you know, it, everybody’s got a different rule.

The rule I try to use for primary is if the other, Parent has less than 10 nights a month. You are the primary custodian. I think if the other parent has more than 10 nights a month, even if it might not be the exact 15, 15 to 50, 50, to me, that is a joint custodial situation. And then there is. Secondary custody.

If you are the parent who does has less than 10 nights a month, you would have secondary physical custody and the form of visitation. So there is physical custody and underneath physical [00:17:00] custody, there’s primary joint and secondary. Now there’s also legal custody. That’s the other type of custody that’s recognized under the law.

Legal custody is whether the party gets to help and make, help make decisions and be consulted on school, religion, different types of education, major medical decisions. Changing in the outward appearance of the child. I was in a hearing yesterday where the mom thought it was okay for the child to dye her hair purple.

The father was opposed to the girl dyeing her hair. That is the change in the outward appearance of the child. You wouldn’t think much about it, but it is. And that is something the parents should have discussed before allowing, before the mother was going to allow the child to dye her hair purple.

[00:18:00] Fortunately, the mom chose not to do that. And so she was not in violation of joint legal custody. The legal custody also gives you access to the teachers, the school records, The doctors, the doctor’s records, counselors, all of that stuff is all covered under legal custody. So, and there’s only two types of legal custody.

There’s joint and there’s sole. The law presumes joint legal custody, says it right there in the law. And the court has to make very specific findings as to why joint legal custody, which is the presumption. This isn’t physical custody. There is no assumption of joint physical custody. In North Carolina, there are in other states like Florida, but not in North Carolina, but on legal custody, there is a presumption that it should be joint legal custody.

Unless the court finds that the parties are wholly unable to communicate. One party is not in a position where they can be communicated with because they are. In [00:19:00] another country or at a job where they don’t have access to phones or the internet stuff like that. If 1 party is abusing drugs or alcohol, and they’re often not in their right mind and able to make good sound decisions about.

These things the court can award one parent sole legal custody, but that is extremely rare in North Carolina. And the presumption is joint legal custody. And in that situation, the party should endeavor to agree on all of these things. And now, you know, with the rise of homeschooling, as the homeschooling numbers have completely exploded after COVID, we’re starting to see that as more and more of an issue.

Where one side might want to homeschool and the other side doesn’t. There’s also the difference between private school and public school, and the cost of that, and what would be the better environment. You know, those types of things. Of course, if you have an emergency, and the child the emergency room, or the [00:20:00] urgent care, or whatever, whichever parent has a child just needs to take the child, get the child the care it needs, and then make sure That they tell the other parent as quickly as possible as to what happened.

So, so that is those are the different types of custody. I think it’s important for people to understand because people come in and say, I want sole custody. Well, sole custody is only really in legal custody and you have to have very specific reasons to have it but most of the time when somebody says they want sole custody What they’re really looking for is primary physical custody And if that’s what’s in the best interest of the child and you can convince a judge that’s in the child’s best interest then that’s what would happen unless the parent just agrees So I guess we got time for one more on this episode.

Yes what happens if your ex spouse fails to pay child support?

If you have an order signed by a judge and filed with the clerk with a file number and the other side does not pay child support, [00:21:00] you can file what’s called a motion to show calls to hold the other parent in contempt of court. And so it’s sort of a motion for you to come to court, non paying parent, and show calls why the court should not hold you in contempt, i.

e. put you in jail for failing to pay your child support in willful violation of a valid court order. A lot of people that call me say that their ex spouse is not paying child support. What can they do? And they don’t actually have an order. They’ve not been to court. They’ve not been to child support enforcement.

They’ve not hired an attorney. They had a verbal agreement that they made by going to the NC child support website and coming up for worksheet, which is great. But now all of a sudden the person is not paying the agreed upon seven, 800, 900 a month. The only thing we can do there is. File a child support action with the court, go get a child support order that orders the parent to pay some [00:22:00] amount of child support to you and They don’t pay we go back to the beginning of the question and we follow show calls, but you can’t do anything Other than go to court and ask for an order if a parent stops paying under a verbal agreement.

If they, if there’s, if child support is in your separation agreement, and you both have signed it and it’s been notarized, then you can file for breach of contract for violating the child’s, for violating the separation agreement. But you can also still go to regular child support court and say. I need a child support order or ask the court to incorporate that part of the separation agreement so that you can get a court order that’s a lot more enforceable than a separation agreement.

My advice is never put child custody and child support in the separation agreement. Always put it in a court order because if it’s in a court order, it’s enforceable by the contempt powers of the court versus. Going to contract court where they don’t quite it’s still court still judges, but they don’t have quite the same power to hold you in contempt as you would if you were [00:23:00] violating an actual court order So anyway, so well, I hope everybody has enjoyed this episode of best of johnson county podcast our sort of the ask jonathan breeden any anything segment that we’ve done here today if you what you’ve heard or would like to know more about us.

You can reach out to us at breed and farm. com. Make sure to like, or subscribe to the best of Johnston County podcast on however, you’re listening to this podcast now, whether it be Apple podcasts, Spotify. YouTube so that you’re notified about our future upcoming episodes of our podcast. We’ve got a lot of exciting guests, a lot of people that have a lot of good things to say about Johnston County and what we’re doing.

We’re also going to be doing some more of these ask Jonathan Breeden, anything episodes where you can learn about all types of family law, divorce custody. If you happen to be going through that or knowing somebody that is, share this podcast with them. So that they know that this resource is out there and we look forward to seeing you next time [00:24:00] on best of Johnston County.

That’s the end of today’s episode of Best of Johnston County, a show brought to you by the trusted team at Breeden Law Office. We thank you for joining us today and we look forward to sharing more interesting facets of this community next week. Every story, every viewpoint adds another thread to the rich tapestry of Johnston County.

If the legal aspects highlighted raised some questions, help is just around the corner at www. breedenfirm. com.