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THINKING ABOUT SEPARATION OR DIVORCE? THINK AGAIN.
FOUR ESSENTIAL THINGS TO CONSIDER BEFORE SEPARATING OR DIVORCING

Making the decision to separate from your spouse is a painful one and definitely not one to take lightly. More than likely, you have already thought a lot about this, but there are a few things you need to decide before taking the first step. Here are four things to consider before separating or getting divorced.

1. WHAT TYPE OF SEPARATION DO YOU WANT?

The first thing you need to decide is whether you want a trial separation or a permanent one. Technically, North Carolina does not have legal separation. Once a married couple has been separated for one year, the party filing for divorce simply verifies, in front of a notary, that the parties have lived apart for more than one year (at least one year and one day), with the intent of at least one of them not to resume the marriage. So you need to decide, is this a trial or is it permanent? During a trial separation, each person can assess whether s/he can live without the other and examines her/himself without interference to determine what s/he wants and needs out of the relationship so that when and if the couple resumes the marriage, s/he knows how to approach the problems. During a permanent separation, at least one party wishes to live the life of a single person again, with the ultimate goal of divorcing. It is very important not to lead your partner on if you want a permanent separation. If you want to end the relationship and seek a divorce, you need to be honest with yourself and her or him about it.

2. HOW WILL YOU AFFORD IT?

A divorce is more than just an emotional decision; it is a legal dissolution of a marriage, and often requires a substantial amount of time, effort, and money. So, before you start the divorce process, think about how you will afford it. North Carolina is an equitable distribution state, which means that an equitable division of marital property and debt is equitable. In other words, from the date of marriage until the date of separation, each party is equally entitled to the property and debt accrued during the marriage. So, after you separate, your financial obligations are your responsibility. Most attorney costs start at $5,000.00 and go up from there. Hiring an attorney will often help you financially in the long run, but you must budget for the costs in advance. If your divorce is contentious or complex, it will be more time-consuming and expensive. Another consideration is how much everyday expenses, living single, will cost. Who will stay in the home and who will move out? If you are the one staying in the marital home, who will be responsible for the mortgage? If you move out, you must budget for rent, food, and other expenses on your income alone. If you are a stay-at-homemaker, you may need to seek support from your husband or wife by asking the Court for a spousal support order to help pay for living expenses and essentials during the divorce process, which will take time to obtain. Look at your income and compare it to your projected expenses and think about how you will fund the divorce. Do you need to ask family for help? Make sure to factor in all necessary expenses, including children, your health, your car, and other important things. To get ahead of the game, begin by getting together all important documents and copy them, like tax statements, income statements, property deeds, marriage licenses, birth certificates, account documents, investments, retirement paperwork, and other important files.

3. WHO WILL TAKE CARE OF THE KIDS?

If you have children, this really should be the first and foremost thing you consider. Separation and divorce definitely impact children, whether the divorce is contentious or not. Often, during the marriage, one spouse spends more time caring for the kids than the other. In this case, that parent is the one taking the kids to school, doctors' appointments, extracurricular activities, for example. North Carolina judges like to protect the status quo, so determine who will have the ability to minimize the impact of extreme change in the children's lives. If both parents take care of the children the same amount of time, you may consider a 50/50 split, where one parent has the children for one week and the other parent has them for one. Another consideration is business weeks with the primary parent and weekends with the other. If one parent cares for the children more than the other, consider who will pay child support and how much should be paid. North Carolina Child Support operates from one of two worksheets (A and B), depending on how much time the children spend with each spouse, which are accessible online. To get a general idea of child support obligations, complete the worksheet.

4. GET READY FOR THE REALITY

Whether you are a newlywed or have been married forever, the reality of getting a divorce is a very difficult one. It will most certainly be completely different that you anticipate. If you are going through repeated infidelity or physical or emotional abuse from your spouse, the decision as to whether you should not be a question. However, it is very important to be open and honest about your intentions. You are going to have to communicate with your spouse; there is just no way around it. The divorce process will have an impact on your emotions and mental state, but you must remember that this is only a phase in your life and one that can be managed. Or, as I like to call them: growing pains. So, take advice from Queen Elizabeth, II: "Keep calm and carry on.

Each divorce is completely different and unique to only that couple's situation. Because of this, it is important to speak with an experienced family law attorney before making any major decisions. We would be more than happy to help you through this difficult process. Contact us at Quay & Associates at 252-635-1610 if you are considering a separation or divorce.

SEPARATION AGREEMENTS: TO INCORPORATE OR NOT TO INCORPORATE? THAT IS THE QUESTION

Written by Deborah Moy

December 19, 2019

In North Carolina, there is technically no definition of a "legal separation." If two people are married and have been living in separate residences with the intent of at least one of them intending to remain permanently separate, then they are separated, according to North Carolina law. Living in separate residences does not mean living in separate rooms; it means living in separate structures that do not share a roof. Once a married couple has been separated for one year, they are entitled to a divorce.

During the one-year separation period, many people enter into what is known as a Separation Agreement to avoid the disputes that can (and probably will) arise when it comes time to file for divorce. A Separation Agreement can determine child custody, child support, alimony, post-separation support, division of property, division of retirement benefits, division of any other marital property, and whether a distributive award is necessary. A distributive award is a lump-sum payment from one party to the other, meant to even the property division, to level the playing field, as it were. Basically, a Separation Agreement can resolve all issues between the parties in advance of a divorce. Additionally, the parties may decide to add a provision to the Separation Agreement that allows for it to be incorporated into a final divorce judgment when that time comes.

Many people prefer to execute a Separation Agreement, to distribute the property and decide complicated issues like child custody and child support, rather than wait a year until they qualify for a divorce. Once signed by both parties and notarized, a Separation Agreement operates as a contract; the Court is not involved. If one person violates his or obligations under the Separation Agreement, the injured party's recourse is to file a breach of contract complaint with the Court.

After the one-year separation period has ended, either of the parties can file a complaint with the Court for divorce. In filing this complaint, that party can also ask the Court to incorporate the Separation Agreement into the final divorce judgment. If there is a provision in the Separation Agreement allowing this, and the other party does not object, then the judge will allow this. The question is: why incorporate? Incorporating the Separation Agreement into the final divorce judgment allows the Court to adopt the Separation Agreement into its order. The Separation Agreement then becomes part of the court order. It follows that, if one party then violates his or her obligation(s) under the Separation Agreement, he or she is then violating an order of the Court. In short, a violation of the Separation Agreement after its incorporation is subject to steeper consequences than a breach of contract claim by the other party. As such, if one party violates his or her obligations under the incorporated Separation Agreement, the other party can file a Motion for Show Cause and obtain an Order for Show Cause from the Court.

An Order for Show Cause is served upon the violating party, requiring that party to come to court and "show cause" why he or she should not be held in contempt of court by the judge. If the judge finds that party in contempt of court, the violating party is subject to fines or even incarceration.

For guidance on Separation Agreements and whether to incorporate them, contact our office, Quay & Associates, at (252) 649-0530.

SEPARATED BUT NOT DIVORCED: IS IT COOL TO NETFLIX & CHILL?

Written by Deborah Moy

November 20, 2019

A question clients often ask is whether it is okay to date while separated but not yet divorced. Well, the answer to this question (like the answer to almost every other legal question) is, "It depends."

Deciding whether to enter the dating world during divorce proceedings is a risk. There is no way around that. However, every person naturally craves companionship and going through a divorce is tough. Who will comfort you during these tough times? Often, the answer to this question before separation is your spouse. But your spouse is not around anymore!

In seeking comfort and direction, many people delve into the dating world with reckless abandon. If this is you, then there are few things you should keep in mind. The way you conduct yourself during the year-long separation period required by North Carolina law can have an impact on how your divorce is settled, especially if children are involved or if you are seeking spousal support, alimony, or equitable distribution.

The important thing to keep in mind is that the way you present yourself during the time after separation and before divorce can most definitely influence the way you are viewed in court.

If there are children involved, spending your money and time pursuing a romantic relationship may be viewed by the court as negatively impacting your children. As a result, the Court may find in your spouse's favor, finding that your goal is not in the best interest of the children. Your spouse can also argue that the love, money, and time you spend with and for your romantic endeavors should be spent on your children. Furthermore, if you bring the children around your new paramour, the Court may find that this exposure presents a negative emotional impact on the children. At the very least, the Court may find that your focus is not wholeheartedly directed toward your children.

If you are seeking support, whether it be post-separation support or alimony, quickly becoming involved in romantic relationships during separation may show the Court that you are able to find support through another or that you are not really in need of financial support. If you are galivanting around town with a new love on your arm, it will be difficult to argue that you are in need of support. Additionally, your spouse can argue that your romantic interest strayed from the marriage before the date of separation.

North Carolina is an equitable distribution state. This means that everything acquired during your marriage and up to the date of separation is shared equally. However, it is not wise to spend money pursuing a dating relationship during the separation period before the Court makes a determination as to how the money is classified. It is best to allow the Court to classify the money, as well as any property, as separate, marital, or divisible, before disrupting the process by disposing of what could potentially be considered marital funds.

The truth of the matter is that while you are going through the painful process of a divorce, your behavior will be under the microscope. The trick is to be mindful of how you present yourself, because any and everything you do during this time can (and probably will) be introduced in court. For guidance on how to navigate through the legal process of a divorce, contact our office, Quay & Associates, at (252) 649-0530.