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"8 Common Questions About Divorce Answered by a Charlotte, NC Divorce Lawyer."
Written by Bill Hunter, Prism Family Law Firm. Updated 04/20/2019
The decision to end a marriage is never an easy one. In addition to the emotions involved with ending a relationship and changing a family structure, there are also a large number of legal, financial, and procedural concerns which may arise. Our Charlotte divorce lawyer frequently speaks to spouses that are contemplating divorce and are regularly asked a number questions about the process of divorce. Please see below for answers to eight of the most common questions:
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8. Do I Need to Hire an Attorney for Simple Divorce?
You are not required to hire an attorney, but it may be wise. A simple divorce is one in which there are no other claims brought in conjunction with the divorce complaint. Individuals can certainly complete the divorce process on their own, but the process can be quite overwhelming for someone who is not familiar with the procedures, rules, and particular steps that must be followed. Failing to follow all steps may result in your divorce being rejected. It is also important to know all of your rights prior to filing for divorce, because once your divorce is granted, you will lose the rights to bring certain claims forever, including claims for alimony and equitable distribution. Want more on pitfalls to avoid when representing yourself? Read Prism's blog addressing why legal matters are not typically DIY projects.
Need help with a divorce related matter in North Carolina? Our Charlotte divorce lawyer is experienced and able to help with your matters located in Mecklenburg or Cabarrus counties. Contact Prism Family Law today at 704-412-1442. Family Matters.
7. How Will the Bad Acts of Myself or my Spouse Affect my Divorce?
Bad acts of spouses, known as marital misconduct, do not have an impact on the actual divorce itself, as North Carolina is a no-fault divorce state. However, marital misconduct may have a major impact on other claims often brought with divorce. For example, divorce from bed and board is a fault based action which may be used to sever all rights arising from marriage (although it does not create an actual divorce), to create a fault basis for other actions, and to potentially eject a misbehaving spouse from the marital residence.
Marital misconduct may also impact alimony, but is typically just one of many factors that must be considered as part of an Alimony claim. However, illicit sexual behavior by either party can have a profound effect on whether or not alimony will be awarded at all. Marital misconduct is not typically a factor considered by judges when dividing the property of spouses, but may be considered when the marital misconduct of a spouse results in the wasting of marital assets. Finally, marital misconduct may also have an impact on child custody if a judge finds that the misconduct directly impacts the well-being of the child at the center of a custody dispute. For more, visit Prism's marital misconduct page.
2. Will it be Considered Abandonment if I Leave the Marital Home?
In order to establish abandonment when a spouse leaves the marital home, the complaining spouse must show that the accused spouse intentionally ended cohabitation with the intent to remain permanently apart, without the consent of the complaining spouse, and without provocation by the complaining spouse. Whether or not leaving the marital residence will expose the departing party to a claim of abandonment will depend on the specific facts of the situation. In order to discourage claims of abandonment based solely on a move-out, we often recommended executing a non-abandonment agreement which will typically include language indicating that the parties consent to the proposed move and waive all rights to bring a claim of abandonment based on the move. View Prism's blog for more on marital abandonment in North Carolina.
4. Is There a way to Speed Up the One Year Waiting Period for Absolute Divorce based on separation in North Carolina?
No. Prior to filing for absolute divorce on the grounds of separation, parties must be separated for one year and one day. The separation date for spouses will be the day that the parties begin to live under separate roofs with the intention to remain permanently separated. It is never a good idea to lie about your separation date, even if your spouse is on board with doing so. Lying on your divorce complaint is illegal and may be considered perjury or potentially falsifying a government document. Further, falsifying a document may lead to your spouse using the threat of exposing such falsified documents as a means to gain an advantage over you in future negotiations.
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5. Who Will Get the Kids?
Without an agreement or custody order in place, both parents technically have an equal right to time with their children in North Carolina. Early on, it is very important on a number of fronts to establish a schedule that will allow any children to have an easy transition to the many changes they will face. If parents are unable to come to an agreement regarding child custody after separation, then litigation may be necessary. It is important to be aware of the custody arrangement being established after a separation as it will create the status quo for your case moving forward. At hearing, Judges are often reluctant to disturb this status quo without good reason. As such, if you start off only seeing your child every other weekend after a separation, it may not be realistic to expect a judge to give you more time with your child when making a custody determination down the road in your matter. However, the status quo is only one of many factors and questions that should be considered in child custody proceedings. For more, visit Prism's child custody page.
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3. What if Both Spouses Want to Stay in the Marital House?
It always creates a bit of a difficult situation when both parties have dug their heels in and want to remain in the marital home. There are several avenues that may be used to force the issue depending on the circumstances of your particular situation. First, divorce from bed and board is a fault based action which may result in one spouse being ordered out of the marital residence. However, the circumstance must be relatively extreme before a judge is going to order someone to leave their own home. Second, if there has been domestic violence, a judge will likely order the offending spouse out of the marital residence as part of a domestic violence protective order. Third, possession of the marital home may be given to one spouse as part of a child support award, but this is not common. Fourth, you may request possession of the marital residence by filing for an interim distribution. The four options discussed above will all likely require litigation, can take quite some time, and can be expensive actions to pursue. If you and your spouse are able to communicate productively, you may be able to negotiate possession of the marital home as part of a separation agreement, therefore avoiding litigation. Unfortunately, sometimes there are no viable options besides litigation. View Prism's blog for more on the topic of dividing the marital home upon separation and divorce.
6. How Will Property be Divided?
North Carolina courts divide property through the process of equitable distribution. An equal (50/50) division of marital and divisible property is statutorily presumed to be equitable (fair) in the absence of evidence to the contrary. As part of an equitable distribution proceeding, property will be classified (as separate, joint, or divisible), valuated (to determine how much each asset and piece of property is worth), and then divided. Generally speaking, all money earned and all property purchased with money earned by either spouse during the course of the marriage, regardless of how or where the money is held, may be considered marital property. This includes bank accounts, pieces of land, furniture, retirement accounts, etc. Separate property will remain the separate property of the owner spouse so long as the assets were not commingled, gifted to the other spouse, or otherwise converted into marital property.
For more on property division in North Carolina and a list of factors a judge must consider when making an unequal distribution to one spouse, visit Prism's equitable distribution page.
BLOG: View Prism's divorce blog here.
1. My Spouse and I are Separating…Is a Separation Agreement Required?
No, you are not required to have a separation agreement in order to divorce in North Carolina, and do not need to file separation papers to make your separation official. However, it is typically a good idea to execute a separation agreement to memorialize terms regarding property division, alimony/spousal support, child custody, and/or child support into an enforceable contract. Oral promises are not enforceable so without formalizing an agreement on these matters, there is nothing that will force your spouse to honor his or her end of the bargain. Separation agreements are also typically a much cheaper option than litigating divorce related issues in court. For more about separation agreements, view our blog titled 4 Common Questions About Separation Agreements Answered by a Charlotte Divorce Lawyer, or visit our page on separation agreements.