Frequently Asked Questions

Family issues are always difficult to deal with, particularly when legal matters are involved. It is often a highly emotional and frightening time for everyone and it is vitally important that you choose the right attorney. Remember, any agreement or order that is entered in your case will likely affect the future of yourself and your children for years to come.

In choosing an attorney, look for someone with the knowledge and experience to strongly represent you and the things important to you. Perhaps even more importantly, choose an attorney who is willing to honestly assess your case and realistically advise you even when that advice may seem counter to your own wishes.  If your attorney is not willing to disagree with you at times, you may not be getting all the information you need.

Also look for a good personality fit. If separation is new to you, you may prefer an attorney who is patient and has the ability to empathize with you. If you are ready to move on and less emotional, you may prefer an attorney who is direct and to the point. Either way, you can find out if a particular attorney is a good fit for you by having an initial consultation with that attorney.

Last, consider the cost of representation. If you have never dealt with an attorney before, you may be initially surprised by the cost. Keep in mind however, people who forego representation, particularly when the opposing party is represented by an attorney, often come to regret that decision. Family law is a complex, frequently changing area of law and you and your family will be better served by having an experienced guide.  In your initial meeting, be sure that you understand what the attorney charges and what, if any, additional costs may accrue each month.

There is a common misconception that a divorce, the legal dissolution of the marriage itself, may be granted immediately after the parties have been separated for at least one year. The truth is that parties can file for dissolution of the marriage one year and one day after the parties physically separated and at least one had the intent for that separation to be permanent. After filing, the opposing party must be officially served with the filed paper work. They are then given time to respond to the complaint and a court date may be set for some time later on. This all takes time. In fact, it could be several months after filing before the dissolution is granted and the parties are divorced. It is true that the process can be faster if both parties are represented by attorneys and in agreement that the divorce should be finalized. Under no circumstances, however, should anyone assume they will be divorced exactly one year after physical separation.

In North Carolina, parties are not considered “separated” until the parties have physically separated and at least one of the parties has the intent that the separation be permanent. In terms of physical separation, separate bedrooms are not enough. Physical separation is only achieved when the parties are no longer residing under the same roof. Separate residences must be established. The intent to separate is a little easier. There is no requirement that the spouses agree to separate. All that is required is that one of the parties come to the decision that they mean to permanently end the marriage. There is no requirement that the party who forms that intent inform their spouse at the time the intent is formed.

In North Carolina, parties are not considered “separated” until the parties have physically separated and at least one of the parties has the intent that the separation be permanent. In terms of physical separation, separate bedrooms are not enough. Physical separation is only achieved when the parties are no longer residing under the same roof. Separate residences must be established. The intent to separate is a little easier. There is no requirement that the spouses agree to separate. All that is required is that one of the parties come to the decision that they mean to permanently end the marriage. There is no requirement that the party who forms that intent inform their spouse at the time the intent is formed.

Absolutely. The date of separation is a key determinate in identifying marital, separate and divisible property in North Carolina. This means the date of separation plays an important role in determining what you are entitled to receive. The date of separation also determines the date at which the parties are eligible to file for divorce (see above). The date of separation may also play a role in cases involving alimony or alienation of affection.

The general rule of thumb is that each spouse is entitled to half of the marital property accrued by the parties. Marital property is anything that is acquired after the date of marriage and before the date of separation through the efforts or either spouse. Debts may also be marital if they are incurred during that same period. Separate property is generally acquired by one spouse prior to the date of marriage or after the parties separate. Separate property may also be acquired by a spouse during the marriage through individual inheritance or gift. Some property, retirement accounts, for example, may be partly marital and partly separate. In those cases, the portion of the property that is marital is subject to division by the courts while the separate component is not.  It should also be noted that the courts have the power to determine that one of the spouses is entitled to a greater share of the marital estate than the other spouse. This happens when the court finds that certain circumstances exist making it equitable that one receive more than the other.

It is not a requirement. If you and your spouse are able to come to an agreement, you are free to agree to anything that works for you and your family. In fact, this will reduce the cost of your divorce and generally leads to greater long term satisfaction for the parties. You and your spouse have the right to agree to things the courts do not have the right to order. For example, North Carolina law does not allow for an order requiring the parents to pay for their children’s college expenses. Parties, however, are free to agree to pay their children’s college expenses voluntarily. If the parties are unable to come to an agreement on their own, mediation is an excellent option. Mediation is a non-binding settlement conference. In Wake County parties generally meet in separate rooms with their attorneys. The mediator goes back and forth between the rooms and helps the parties reach an agreement. The mediator is not a judge and cannot order anyone to do anything. Mediators are trained in helping parties reach agreements in even the most difficult circumstances and parties are often surprised they are able to resolve their cases in mediation. Failing mediation and individual agreement, court can become the only remaining option. I always advise my clients to avoid court if at all possible due to the expense and the unpredictable nature of a trial. There is no guarantee what the outcome may be. In court, the judge has the final say and both parties lose the opportunity to make decisions about their family. It can also be a traumatic experience for parties and tends to increase the acrimony between already disagreeing parties.

 

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