North Carolina’s family and marital laws can present complex legal issues for families in transition. Bagwell Holt Smith P.A. has gained a reputation for proficiency, diligence and compassion in dealing with adoption, marriage, separation and divorce. That reputation was gained one family at a time, with many of our clients referring their friends and associates.
As a client-centered practice, we’ve always pursued and provided ready accessibility and clear, concise and prompt communication as we dedicate ourselves to understanding each client’s unique situation to achieve the best possible outcome. Our attorneys and support staff approach cases involving children, spousal support and property with the sensitivity and seriousness they deserve – we are all members of families, too, and have great empathy for all parties.
My experience with John Miskey has been outstanding! He is extremely professional, while also remaining very approachable and easy to engage in conversation. He is extremely thorough and ready to defend his client’s rights whenever necessary and does so to the best of his ability.Family Law Client
Family Law ServicesSelect a Service Area:
- Alimony and Spousal Support
- Child Custody and Support
- Complex and High Net Worth Divorce
- Domestic Violence
- Equitable Distribution
- Marital Torts, Including Alienation of Affection and Criminal Conversation
- Premarital Agreements
- Qualified Domestic Relations Orders
- Separation and Divorce
Adoption is a personal quest which raises a range of emotions – apprehension, hope, anxiety, exhilaration – and we understand. Human empathy, deep background in family law and confidence that comes from experience enables us to provide comprehensive guidance that can help adding to your family as seamless a process as possible. We assist every step of the way with guidance through the multi-step process of forms, evaluations and deadlines.
We can assist with all types of adoptions including:
- Independent adoptions
- Relative adoptions
- Agency adoptions
- Step parent adoptions
- Adult adoptions
If you are considering divorce or separation, or have been served with a divorce lawsuit, alimony may be a key and contested component of your case. Whether you think you may have to pay financial support or are concerned you will need alimony payments to meet your needs, we can help. Out total focus is on obtaining favorable results and financial peace of mind for our clients. We’ll negotiate alimony awards that make sense for our clients’ circumstances and, if necessary, advocate aggressively for them in court.
Unlike child support, there are no firm guidelines or calculators for alimony. Therefore, calculating a projected alimony obligation is best assessed on a case-by-case basis, which also takes into the account the current trends in your county.
North Carolina provides for two forms of spousal support, also known as alimony:
This type of support is intended to be temporary and rehabilitative support. It is used to address the immediate and practical needs of a dependent spouse. Hearings are frequently short and marital fault generally plays less of a role.
Alimony is the more significant claim. It can be settled upon separation or tried following the finalization of absolute divorce. Alimony awards can range from several months to permanent terms. The amount and duration of an alimony award is based on a number of factors, including the length of the marriage, the relative standard of living enjoyed by both parties during the marriage, the parties’ needs and earning capacities, and the existence of marital misconduct.
An annulment is the legal voiding of a marriage, treating it as if it never existed. North Carolina law only allows marriages to be annulled in very specific circumstances. Annulments are different and less common than absolute divorces in North Carolina. For a marriage to be annulled, specific papers must be filed with the court and a judge must enter an annulment order. The family law attorneys at Bagwell Holt Smith P.A. can help determine if your marriage qualifies for annulment and if so, file the required papers.
A marriage may be annulled in the following situations:
- Improper relationship/incest: The husband and wife are closer than first cousins (for example: double first cousins, uncle/niece, siblings)
- False pretenses: The husband and wife were married believing the wife was pregnant, but then separated within 45 days of the marriage and no child was born within 10 months of the separation
- Impotency: Either spouse was physically impotent at the time of the marriage (impotence must be medically diagnosed by a doctor)
- Soundness of mind: Either spouse was “not of sound mind” and incapable of entering a contract at the time of the marriage
- Nonage: One of the spouses was under the age of 16 at the time of the marriage (unless there was a court order allowing marriage between ages 14-16 when the wife is pregnant)
- Duress: Consent for marriage must be made freely, seriously and plainly expressed. Any violence or threats that would take away the will or understanding or consent freely, seriously and plainly expressed could be sufficient to declare a marriage void for duress
- Bigamy: A marriage entered into while either of the parties is a party to a valid prior marriage which has not been dissolved is absolutely void
We have represented hundreds of cases in which we successfully negotiated sole custody, joint custody and fair visitations in divorce procedures. We’re deeply experienced in these matters and will aggressively represent your legal rights as a parent while striving to minimize the adverse effects these battles can have on your family. The courts typically seek to do what is in the best interest of your child, but the application of that standard can vary from county to county. Our experienced team of attorneys will devise effective strategies to accomplish your goals and present your side of the story.
In most cases, you can use the North Carolina Child Support Guidelines to calculate child support obligations. We can assist with this calculation and provide additional support in cases involving self-employment or unreported income. We help create and implement enforcement mechanisms, including wage garnishment where appropriate, to enforce child support obligations. Additionally, we have experience negotiating child support modifications as circumstances change.
During a divorce where children are involved, it is important to understand your rights and responsibilities as a parent. We can help answer these questions and more:
Child Custody and Visitation:
- How is physical custody of children typically divided between parents?
- Do third parties, e.g. grandparents and relatives, have custody rights?
- Are the custody rights of same-sex parents the same as opposite-sex parents?
- Is the Court typically likely to award sole or joint physical custody?
- How is legal custody, i.e. decision-making power by parents over the children’s affairs, typically divided?
- At what age are children not subject to custody agreements and orders?
- Can these custody issues be settled by agreement instead of filing a law suit?
- Is obtaining a temporary custody order appropriate?
- Who owes a child support obligation?
- What are the criteria used to calculate a child support obligation?
- At what point does the amount of custody impact a child support obligation?
- Is adhering to the North Carolina Child Support Guidelines required?
- In what circumstances can a Court or the parties deviate from the North Carolina Child Support Guidelines?
- Aside from employment income, what other forms of income are relevant to a child support calculation?
- Should child support be based on a parent’s actual or potential income?
- How long does an obligation to pay child support typically last?
In divorce cases involving significant marital estates or complicated legal issues, our team of experienced family law and litigation attorneys can address your immediate legal needs as well as work with you to develop smart strategies for future action. Whether your case involves a multi-million-dollar estate or challenges concerning the allocation of significant debt, you can rely on our knowledgeable attorneys for exceptional legal representation.
We have relationships with forensic and certified public accountants, business evaluators and financial planners and have experience searching for hidden assets, protecting business assets and evaluating various retirement and tax scenarios. Although a marital estate is typically equally divided between the parties, there are a number of nuances concerning classification and value considerations as well as circumstances justifying an unequal division of a marital estate. We are familiar with these conditions and adept at using them to your advantage. If necessary, our practice also includes a motivated litigation team who will aggressively fight for your rights in court.
We address domestic violence cases with urgency and compassion. We can obtain Domestic Violence Protective Orders and Rule 65 Civil Restraining Orders to protect our clients from assaults, harassment, stalking, threats and other acts. If a party violates a restraining order, he or she can be charged with a criminal offense, held in contempt, incarcerated or fined, depending upon the circumstances.
If you are seeking a restraining order, we can help you with legal representation on matters including:
- Drafting and filing a Complaint seeking a Domestic Violence Protective Order or a Rule 65 Civil Restraining Order
- Preparing the case for hearing
- Representation in court
- Collaborating with community resource centers and nonprofit agencies to provide additional victim support
“Equitable distribution” is the division of marital assets and debts, and the laws on the subject can be appear cryptic for those going through separation or divorce. In our state assets are generally classified as marital, separate, divisible or mixed, assigned a value and then fairly distributed between the parties. Complexities can arise with the valuation of unique items, businesses and stock options and their tax implications, comingled assets, or one spouse’s work to improve the value of the other spouse’s separate property. At Bagwell Holt Smith P.A. we can analyze your case and help you navigate this potentially complex process.
We can answer all your questions about equitable distribution, including:
- How can I preserve my rights to a fair division of the marital estate?
- How are assets and debts classified as marital, separate, divisible or mixed?
- Is there a presumption that each spouse is entitled to exactly one-half of the value of marital assets and shares responsibility for exactly one-half of the liability of marital debts?
- Can the Court order an interim distribution of marital assets and debts to provide short-term financial relief?
- What is the effect of divorce on equitably distributing marital assets and debts?
- Is marital fault relevant to a property distribution analysis?
- What claims does a spouse have against the separate assets of the other spouse?
- How is liability assessed for debts incurred after separation of the parties?
- What solutions are available to address real estate and mortgage liability issues?
- What is the best legal strategy to resolve issues concerning joint creditors?
- How are tangible personal property items, e.g. furniture and clothing, typically itemized and divided?
- How are intangible property items, e.g. life insurance policies and retirement accounts, typically divided?
- How are complex marital assets, e.g. business interests and stock options, typically addressed?
- How is the ownership and care of pets addressed?
- What documents typically need to be prepared to change title on property, e.g. real property and automobiles?
- Will the Court order a party’s attorney’s fees to be paid by the other party?
We understand that many divorce situations are not straightforward and may create challenging litigation issues. Our skilled legal team has considerable experience successfully prosecuting and defending marital tort claims. We can determine if you have any civil claims for marital torts including claims that address alienation of affection, criminal conversation (adulterous behavior) and infliction of emotional distress.
North Carolina is one of seven states where a spouse can sue for alienation of affection and criminal conversation. A spouse can sue a third party alleged to be responsible for interfering with the marriage. If your marriage has suffered at the hands of another, or if you are being sued for these claims, our attorneys are experienced in these matters. To learn more about these torts, read our blog post on alienation of affections and criminal conversation.
A premarital agreement is a contract between a couple that oversees property rights, expenses, assets and liabilities. Marriage is a significant financial event and a premarital agreement can help establish expectations, avoid future litigation and help protect you, your spouse and children. Our family law attorneys have decades of combined experience drafting binding premarital agreements that help to ensure your assets, business interests and rights are protected.
A premarital agreement can be beneficial in these circumstances:
- You own significant assets
- You were previously married
- You have children from a previous marriage
- You own a business
- You want to preemptively decide your property or support rights in the event of a future separation
A premarital agreement can address:
- Division of property in the event of divorce
- Ownership of real property
- Premarital and future debts
- Alimony obligations
- Financial responsibilities of both spouses during the marriage
A Qualified Domestic Relations Order, or QDRO, is a court order that gives one spouse the right to receive all, or a portion of, the retirement plan benefits of the other spouse. If you are in the process of separating or are involved in divorce proceedings, and your marital estate contains retirement assets, a QDRO can be an essential legal document to have drafted by a qualified attorney. Entered correctly, a QDRO will allow a spouse to move retirement funds into their own retirement account, without penalties or taxes, until the funds are disbursed. Parties who attempt to transfer retirement assets without an appropriate court order may be subject to penalties by the IRS.
The decision to file for divorce, or the realization that your spouse wants a divorce, can be a very difficult time in a person’s life. We provide comprehensive representation throughout physical separation and divorce proceedings and have the experience and compassion necessary to help you navigate your way through the process. Our divorce lawyers have decades of experience obtaining favorable outcomes in decisions regarding custody, financial support and property division.
During this emotionally trying time, you may be overwhelmed and unsure of what steps to take. Whether you are considering separating from your spouse, or the decision has been made, our attorneys make a point of being available to answer your questions, review your options and work with you to develop strategies that protect your parental, financial and property rights. If necessary, we will also vigorously fight to protect your rights in court.
We can help answer these questions you may have, and more:
- What are practical suggestions for a spouse considering separation?
- What is a legal separation?
- What is the effect of resuming marital relations or reconciling on the parties’ separation? Does it start the one-year separation period again?
- If a spouse separates without financial resources, what government resources are available to potentially provide financial relief and medical insurance for the spouse and minor children?
- How long must a spouse be separated before filing for divorce?
- Is filing for Absolute Divorce or a Divorce from Bed and Board a better legal remedy?
- What are the filing fees to file for divorce?
- Is there a residency requirement for filing for divorce?
- How long does the entire divorce process take?
- Is marital fault or consent of a spouse relevant?
- Can the Court grant possession of the marital residence to one spouse?
- What objections or defenses can be raised at a divorce proceeding?
- What are the effects of divorce on other issues, e.g. child custody, child support and property?
John G. Miskey IV is a board certified specialist in Family Law and leads the Firm’s Family Law department. He has maintained an interest…
Emily Hurtt practices in the Firm’s Family Law group, providing strategic, transparent legal advice with a deep commitment to clear communication and fulfillment of…
Sara Barlowe is an associate attorney at Bagwell Holt Smith where she practices in the Firm’s Family Law department. Sara joined the Firm in…