Nuts and Bolts about Separation and Divorce: In the video below Attorney Joe Peterson explains what conditions must be satisfied for a couple to be deemed separated. He also discusses what issues typically arise when a husband and a wife are separated.
Marriage, Divorce & Divorce-related issues
People may comment on how “easy” it was to get their divorce, but one thing is true: it can be even more convenient, less stressful and less emotional if you allow an attorney to handle it. The attorneys at our firm routinely help their clients obtain divorce. Hiring an attorney to handle your divorce also brings the added benefit of being advised on legal issues you are probably not aware of. This allows you to seek the divorce on terms favorable to you, and to not go into it blind. Whether you want a divorce soon or foresee one in the future, schedule a consultation with the attorneys at our firm to best understand your options.
- Contested & uncontested divorce
- Post-separation support & Alimony
- Equitable Distribution (property distribution)
- Separation and Property Settlement Agreement
Contested & uncontested divorce in North Carolina
When people speak of divorce, they may generally be thinking of absolute divorce. In North Carolina, absolute divorce terminates the matrimonial bonds created between you and your spouse by a lawful marriage. One obvious consequence of an absolute divorce is that you or your ex-spouse may marry again without restriction arising from the dissolved marriage. Notice, however, that obtaining an absolute divorce does not mean that any number of potentially difficult issues that you may face because of the dissolution of the marriage — such as custody, child support, spousal support, and/or distribution of property — are somehow being resolved at the same time. You can, in fact, get an absolute divorce whether or not you and your spouse have resolved any of these potentially difficult issues. To put it differently, you can get an absolute divorce while all these potentially difficult issues are still pending.
Be mindful that the entry of an absolute divorce terminates your rights to post-separation support, alimony and equitable distribution of marital property, unless you have filed such claims prior to the entry of the absolute divorce. Thus, if your estranged spouse asks you to consent to an absolute divorce, do not make a snap judgment: it is in your best interest to take a moment to consider whether you would want to assert claims for alimony or equitable distribution prior to the entry of an absolute divorce.
In North Carolina, absolute divorces are usually obtained based on one year of separation. In order to obtain an absolute divorce on this basis, you must satisfy the following two conditions:
1. Whether you or your spouse are filing the action for divorce, the plaintiff or defendant must have resided in North Carolina for at least six months immediately preceding the institution of the divorce. It is important to notice that this residency requirement is satisfied as long as either the plaintiff or defendant satisfies it. It is not necessary that both the plaintiff and defendant have resided in North Carolina for six months. For example, if you have resided in North Carolina for the last six months, but if your spouse left this state four months ago and now resides in New York, you still satisfy the residence requirement for getting an absolute divorce.
2. You and your spouse have lived separate continuously for one year, without resuming the marital relationship. To satisfy this requirement, it is not necessary that you and your spouse execute some legal document on the date of the separation. What matters is the actual fact of you and your spouse getting separated physically and living separate and apart from each other for one year. In general, in order to satisfy this requirement of living separate and apart, it is not sufficient for you and your spouse to have moved into separate bedrooms in the same residence and have not engaged in sexual relations. You and your spouse must reside at different places for a year. Under present law, isolated instances of sexual intercourse do not automatically constitute a resumption of marital relations. However, if your allegation of one years separation is contested by your spouse for some reason, instances of sexual intercoursemay add to the totality of circumstances considered by the court.
If you are a female and wish to resume your maiden name after a divorce, you may want to petition for the name change. The desired name change can be done simultaneously with the entry of an absolute divorce. There is no additional cost for this name change if it is done at the same time as the divorce.
At a post-separation hearing, the court considers the parties accustomed standard of living, the present employment income and other recurring earnings of each party from any source, their income-earning abilities, the separate and marital debt service obligations, those expenses reasonably necessary to support each of the parties, and each party’s respective legal obligations to support any other persons. It is customary for the court to consider each spouses financial affidavit that describes his or her income and expenses. Each party may also testify before the court.
If the court determines that the party seeking spousal support has insufficient resources to meet his or her reasonable needs and the other spouse has the ability to pay, the court will find the spouse seeking support to be the dependent spouse and it will grant an award of post-separation support to the dependent spouse. N.C. Gen. Stat. Â§50-16.2A mandates that in deciding whether to award post separation support and in deciding the amount of post separation support, the court shall consider whether the dependent spouse had engaged in any acts of marital misconduct prior to or on the date of separation. If the court considers these acts by the dependent spouse, the court must also consider whether the supporting spouse had engaged in any acts of marital misconduct prior to or on the date of separation.
If an award of post separation support is granted, the award continues until a date specified in the order or the entry of a final order of permanent alimony. Post separation support can be made in several different ways, such as periodic payments, a lump sum payment, or a transfer of personal property.
At an alimony hearing, as at a post separation support hearing, the court must first consider the threshold issue of whether one spouse is a dependent spouse and whether the other a supporting spouse. If this threshold issue is decided against the party seeking support, no award of alimony will be made. If the court makes a finding that the party seeking support is indeed a dependent spouse and that the other a supporting spouse, the court is then required to make an award of alimony to the dependent spouse that is equitable after considering all relevant factors. Some of the relevant factors to be considered by the court are listed below.
If, in considering an award to alimony, the court finds that the dependent spouse engaged in an act or acts of illicit sexual behavior during the marriage and prior to or on the date of separation, the court will not award alimony. If the court finds that the supporting spouse engaged in an act or acts of illicit sexual behavior during the marriage and prior to or on the date of separation, the court will order that alimony be paid to the dependent spouse. If the court finds that the dependent and the supporting spouse each engaged in an act or acts of illicit sexual behavior during the marriage and prior to or on the date of separation, the court may then award or deny alimony in its discretion after consideration of all of the relevant circumstances. Any act of illicit sexual behavior by either party that has been condoned by the other party wont be considered by the court.
The court has broad discretion in determining the amount, duration and manner of payment of alimony. In making these determinations, the court is required to consider all relevant factors, including:
- The marital misconduct of either of the spouses;
- The relative earnings and earning capacities of the spouses;
- The ages and the physical, mental, emotional conditions of the spouses;
- The amount and sources of earned and unearned income of both spouses, including, but not limited to, earnings, dividends, and benefits such as medical, retirement, insurance, social security, or others;
- The duration of the marriage;
- The contribution by one spouse to the education, training, or increased earning power of the other spouse;
- The extent to which the earning power, expenses, or financial obligations of a spouse will be affected by reason of serving as the custodian of a minor child;
- The standard of living of the spouses established during the marriage;
- The relative education of the spouses and the time necessary to acquire sufficient education or training to enable the spouse seeking alimony to find employment to meet his or her reasonable economic needs;
- The relative assets and liabilities of the spouses and the relative debt service requirements of the spouses, including legal obligations of support;
- The property brought to the marriage by either spouse;
- The contribution of a spouse as homemaker;
- The relative needs of the spouses;
- The federal, State, and local tax ramifications of the alimony award;
- Any other factor relating to the economic circumstances of the parties that the court finds to be just and proper;
- The fact that income received by either party was previously considered by the court in determining the value of a marital or divisible asset in an equitable distribution of the parties marital or divisible property.
Equitable Distribution (property distribution)
When parties go their separate ways, the property between them must be divvied up. The parties can do this through agreement (see Separation Agreements) or through court mandate. We have substantial experience in drafting agreements that provide our clients with the property they want or need. We also have substantial experience arguing for property distributions on behalf of our clients in court. Allow us to use our knowledge of the law and skills of advocacy to help you seek the property you care about.
A separation agreement is a contract that a husband and a wife enter into voluntarily upon their separation from each other. When a husband and a wife decide to separate from each other, a number of potentially difficult issues, such as custody of children, child support, spousal support, and/or property division, may arise from this decision. In a separation agreement, the parties can resolve and reach an agreement, on their own, on any one of those potential difficult issues without going to court. The best thing about a separation agreement is that the parties themselves have input in the process and they themselves work issues out by discussion and consent, in contrast to a situation where a judge who may only be partially acquainted with the specifics of the parties circumstances make the decision for the parties and slam it down on them. Thus, while there is no law that requires a separating couple to execute a separation agreement, it is often a good idea to get it done, if possible. Of course, it is frequently the case that the parties cannot reach an agreement on many of the difficult issues they face, such as custody, spousal support or property division. In such situations, a separation agreement is not a realistic option.
For a separation agreement to be deemed valid and enforceable, both parties must sign the agreement and have their signatures notarized.
While a separation agreement is not a court order, it can be incorporated into a divorce decree. When that happens, the separation agreement is now part of a court order. When a party breaches an aspect of a separation agreement incorporated into a divorce decree or a court order, a contempt proceeding is a remedy available to the injured party.