Silva, Kiernan&Associates, PLLC

Family Law

At Silva, Kiernan & Associates, PLLC, we handle a wide range of Family Law Issues, including divorce, child custody, child support, spousal support, equitable distribution (property division), termination of parental rights, and adoption.  We view your Family Law issue as a problem in need of a solution,m and we will work with you to achieve a fair resolution.  Below is a brief explanation of each type of case and the important things for you to consider relative to each type of case.


Divorce


To be eligible for divorce in North Carolina, you and your spouse must be separated from each other for at least one year.  Separation means that you and your spouse must live under separate roofs and at least one of you must intend not to resume the marital relationship.  An attempt to resume the marital relationship will restart the clock on the year of separation.  


Although a Separation Agreement is not necessary for getting a divorce, it is almost always advisable.  Getting divorced eliminates your ability to file certain kinds of claims relating to your prperty and support if you have not filed those claims prior to the entry of the divorce judgment.  Even if you and your spouse know how you want to handle those areas, there are two things to keep in mind:  First, a year is a long time for two people who are ending a marriage to stay on the same page.  As time sets in, resentment will almost always become a reality.  Your spouse is almost certain to be disenchanted by some trivial matter and believe that he/she should be entitled to more than what was orally agreed upon.  If either of you embark on a new relationship, that will almost certainly cause the other party pain and, inevitably, want to return the favor through legal recourse.  


The second reason that will justify a Separation Agreement is based upon the premise that two married people will almost certainly have some form of property (home, land, car, bank accounts, debt obligations) that are titled in both names.  If a divorce is granted without resolving those issues, the two of you will move forward as joint owners of those assets/liabilities, which can create legal headaches for years into the future.  Further, as explained below, a Separation Agreement can be a reliable method for you and your spouse to outline your respective rights and responsibilities as relating to child custody and support.


Child Custody


There are two types of custody in North Carolina, legal custody and physical custody.  Legal Custody refers to the ability of a parent to make important decisions on behalf of their children, such as where they go to school, what religion they are raised in, who they can spend time with, etc.  The vast majority of custody cases result in parents being awarded joint legal custody.  


Physical Custody is what we more commonly think of as custody, which is with whom the child spends the majority of their time.  There are two main types of physical custody arrangements.  Beginning with the first and more traditional system, we have Primary and Secondary custody.  This is when the child normally lives with one parent and visits with the other on scheduled dates.  


The second type of physical custody is known as Joint Custody.  This is a situation that is becoming more common in our Judicial District.  Joint custody arrangements, can vary in time and circumstance.  However, it is becoming more prevalent to adhere to a week on and week off type of arrangement. What this means is that the child will spend one week with one parent and the following week with the other parent.  


We say that the week on week off arrangement is becoming more prevalent in this District because of a recent trend toward dividing parents time equally in order to insure the child has the maximum possible exposure to each parent.  Obviously, this may not be the solution you desire and you may have some very good reasons why the court should pursue a different course of action.  No matter what your situation is, we are here to work with you in an effort to find the solution that best suits your needs.


Child Support


A parent's child support obligation is determined based upon the parents' relative gross monthly income, other child support obligations, other children being supported, work-related child care expenses, health insurance premiums related to the child, and any other extraordinary expenses.  Additionally, there are grounds to deviate from the North Carolina Child Support Guidelines in certain circumstances.  Child support is modifiable if there has been a substantial change in circumstances since the last Order was put in place.  A big mistake people with child support obligations make is delaying the filing of a modification of their child support after suffering  loss of income.  Besides the obvious trap of falling behind, this could subject you to contempt proceedings and could land you in jail.  Child support arrearage is generally not modifiable, so it is important to let the Court know, as soon as practically possible, if you have found yourself in a situation where you cannot meet your child support obligations.


​Spousal Support


There are two different types of spousal support in North Carolina, post-separation support and alimony.  Post-separation support is established during the period of separation and is calculated by comparing the dependent spouse's need for a reasonable amount of support against the supporting spouses ability to pay.  Alimony is calculated much the same way, with some additional considerations coming into play.


Equitable Distribution


Equitable Distribution is a cause of action for the division of marital property - both assets and debts.  In order to divide property, the Courts will need to determine what property is marital and what property is separate.  Marital property is all property acquired by either spouse after the date of marriage and before the date of separation (with some exceptions).  The Court will then seek to make a fair division of that property based on a number of different factors.



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