Category Archives: Separation

New to NC…and Divorcing

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North Carolina divorce

It’s a pretty common scenario:  spouses living in another state decide to separate, and one or the other heads to North Carolina to be near family, a new job, the epicenter of college basketball, awesome bbq, beautiful mountains and beaches…there are lots of reasons to move to NC!  Whatever brings the spouse here, they often have some questions about how to proceed with the divorce:  Do we file for divorce in NC or the state where we lived together?  What do I have to do to get divorced in NC?

In North Carolina, by statute you must have lived in the state for at least six months as of the day you file your divorce complaint.  So, if you have recently come here from another state, you cannot file for divorce here under North Carolina law until you have lived here for six months.

You will also need to know that in North Carolina, obtaining a no-fault divorce requires that you and your spouse be separated for one year (actually technically a year and a day).  This means that you must be living under a different roof, with the intent to stay separated forever, for one full year before you may file for divorce.  So if your spouse still lives in the other state, it might be wise to check into the divorce laws there and see how the process compares to North Carolina.  If you have questions about where and how to file for divorce, call a family law attorney to talk about the specifics of your case.

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Do I Really Need a Divorce Lawyer?

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Divorce Lawyer

Callers to my office ask this question pretty regularly.  People seem confused about when and whether they need a lawyer to help them through their divorce.  This is a fair question, given the proliferation of online sources for legal forms, documents, and information.  There are lots of places to research your questions, but you also risk “information overload.”  What if different websites seem reputable, but give conflicting information?

The first thing to remember if you research divorce law on your own is that divorce and family law issues are governed by state laws.  So while general information might be a good place to start, focus your research on your state’s law.  An article or blog post about divorce procedures in Nevada will not be very helpful in assessing your North Carolina divorce case.

In some cases, the spouses can certainly negotiate a settlement between themselves, without the input of lawyers.  When is this possible?  It truly depends on each individual case, but generally:

  • The shorter the marriage, the easier it may be to handle alone, because alimony is less likely to be an issue.
  • Few assets and no real estate holdings make it easier to split up without lawyers, because there is less physical “stuff” to fight over.
  • When there are no children involved, and thus no custody and child support issues involved, you may be able to handle things yourself.
  • If you and your spouse are friendly and cooperative enough to negotiate fairly between each other, then you may not need to involve lawyers.

If any ONE of the statements above does not apply to your case, however, then you would be wise to at least consult with a lawyer.  The more complicated your situation is, the more likely you are to need legal guidance and representation.  Ask yourself whether hiring a lawyer would add value to your case — would the financial, time, or peace of mind benefits outweigh what you spend on a lawyer?  When you have children, large assets, retirement savings, or own your own business, the answer is likely “yes.”

Cohabitation in NC

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CohabitationCohabitation has become more common and more accepted in today’s society.  Statistics vary, but some sources claim as many as 60 percent of couples today live together before marriage.  People of different generations, backgrounds, and beliefs could argue all day about whether cohabitation is a good thing or not.  In the end, though, the practice is widespread enough that it is important for unmarried couples to think about the legal options and consequences when they decide to live together.

First off, the North Carolina law that made unmarried cohabitation illegal was struck down as unconstitutional by a superior court judge in 2009.  That decision is not necessarily binding on the whole state, however, so cohabitation may still technically be illegal.  It is unknown so far what other state courts would say on the matter, but the law against cohabitation (passed in 1805) is very unlikely to be enforced.

North Carolina does not recognize common law marriage, and there is no “legal status” associated with unmarried cohabitation.  Thus, a couple who lives together for many years and then breaks up, is still not usually entitled to the remedies associated with divorce:  equitable distribution of property and alimony.  Property is simply divided according to who owns title, and dividing personal property (i.e. furniture and valuables) can of course become very difficult for those whose lives and money have become so intertwined.

So how can cohabiting couples protect themselves and plan for the future?  First, don’t be afraid to talk about these issues before moving in together.  If you’re close enough to live together, you’re close enough to talk about protecting yourselves and each other financially if things end poorly.  Think of this just like betrothed couples discussing a pre-nup — it’s unpleasant to think about, but in some cases essential to protecting your interests.

Second, unmarried couples in North Carolina are free to make contractual agreements to establish rights and obligations should the relationship end.  So although unmarried couples are not granted the rights associated with marriage, they can make express agreements about dividing property in the event of a break-up, and the agreements will be honored by courts (as long as they are not based upon sexual services).  Before acquiring any substantial property interest together, it is very wise to make a written agreement about what would happen to the property if the relationship ended.  It may be a touchy subject, but it’s much easier to reach an agreement when you’re on good terms than it will be if things go south.

Note:  North Carolina still does not recognize same-sex marriage, so this advice applies to same-sex couples who consider themselves married, as well.  Although the law denies the privileges and rights of marriage to same-sex couples, there are ways to secure some of those rights through contract before (and after) joining your lives together. Goodness knows it’s not romantic, but it’s important!

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Gray Divorce

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Gray DivorceAccording to this New York Post article, the divorce rate for those over 50 has risen from about 10 percent in 1990 to 25 percent today.  The phenomenon is widespread enough that it even has a name:  “gray divorce.”  Experts theorize a number of reasons that this might be happening:

  • Longer, healthier life spans lead older people to believe there’s still time to start over
  • Older people are more likely to be on their second or third marriages, which are more prone to divorce
  • Higher expectations for marriage
  • Perception that it’s easier to get divorced than it was in the past
  • Less sense of shame about divorce makes couples less inclined to “stick it out” after the children have left the home.

Whatever the reasons for the trend, there are unique considerations that attorneys and their “gray divorce” clients should take into account.  Unlike many younger couples, for whom custody and child-rearing issues are often paramount, for older divorcees the most important issue is often assets, and the strategic division of those assets is very important for their retirement years.  It is important to divide pensions, insurance policies, and real estate, while hopefully ensuring that each spouse will have money to live on in the “twilight years.”

For couples with fewer assets, divorce can cause financial strain that may mean one or both spouses become partially dependent on their children or the government.  Couples over 50 are more likely to have estate planning already in place as well.  If so, it may be necessary to revisit wills, life insurance, trusts, bequests, and other end-of-life documents to ensure that assets and decision-making power will still be distributed according to each ex-spouse’s wishes after divorce.

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Beating the Odds in Remarriage

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Remarriage statisticsMost Americans have probably heard that the national divorce rate is somewhere between 40 and 50 percent.  We’re used to that scary number.  But many who haven’t been through a remarriage might not know that the divorce rate for remarriages is even higher.  I recently encountered an article in the Huffington Post, citing a divorce rate of 60 to 67 percent for second marriages (at least one spouse married before) and 70 to 73 percent for third marriages (at least one spouse married twice before).  Those are rough odds, and to the uninitiated, it may seem counterintuitive.  Those who remarry should be older and wiser, and should know themselves and their needs better, right?  They’ve been down the road of marriage before, so shouldn’t they understand the stakes and the pitfalls?

All of that may be true, but there are also a number of complicating factors that uniquely threaten remarriages.  The HuffPost article addresses a number of psychological factors that may play a role, such as fear of being alone and looking for a quick fix after a difficult divorce.  Possibly the biggest complication is dealing with children and challenging exes on one or both sides of the new family.  Those who have successfully blended families know that it takes a lot of love, patience, and hard work.

The point of knowing and sharing the statistics about remarriage is not to throw cold water on post-divorce relationships or second and third marriages.  It’s simply to note how important it is to think about the realities of remarriage for you and your situation.  What factors in your life are likely to make things different this time around?  How will you and your next spouse deal with those things together?  Nobody wants to visit a divorce lawyer at all, much less for more than one case in a lifetime.  It takes courage and thoughtfulness to start over, so take your time and address the challenges honestly so that you can beat the odds the next time around.

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Be Careful About What You Remove From Social Media, Too

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Social Media Perils

There is a seemingly endless stream of problems that can arise from social media and technology when it comes to divorce and family law.  If you have spoken with a family lawyer lately, you likely heard a warning to be very careful about what you put on the internet.  That is an important rule of thumb always, but especially if you are involved in a divorce or custody case.  It is also important to be careful about how you search for information about the activities of a spouse or others.

This is becoming such an important topic that a few hundred North Carolina family lawyers recently met in Greensboro specifically to learn about the criminal and civil liabilities that can arise for ourselves and our clients from various digital activities.  The program addressed a number of the topics, some of which I’ve addressed in earlier blog posts, but one important additional topic is “spoliation.”  Spoliation of evidence is the legal term for when someone deletes or destroys evidence that is potentially relevant in a case.

If a party in a divorce or other family law matter intentionally deletes social media posts, for example, because they might be damaging to the case, that person might be guilty of spoliation.  The party, and his or her lawyer if the lawyer advised it, can be sanctioned or otherwise in trouble with the court.  At the beginning of a case, a lawyer will often send a “spoliation letter” to the opponent or anyone else who has relevant evidence, warning them to preserve the evidence that must be turned over.  This is another reason to be very cautious about what you share online — you may not be able to delete it in the future without causing significant problems.

So, if you are concerned about things you may have posted online in the past, be very careful about “cleaning up” your Facebook page or deleting old Tweets and emails.  You may cause yourself bigger problems if you get caught destroying evidence.  Think twice before you post anything online, and if you are in the middle of a case and are worried about your social media presence, talk to your lawyer about your concerns.

Considering the Child’s Preference in Custody Decisions

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Child CustodyWhen children are old enough to have an opinion on such things, many families wonder whether the child’s preference on whether to live with mom or dad can or should play a role in the final decision.  Not surprisingly, the answer depends on the situation.

Situation One:  Everybody Agrees

In practice, joint agreement among the adults involved in the custody matter is the most common way to resolve custody questions.  Thus, if the child and the parents (or other adults involved) are in agreement about where the child should primarily live, then the child’s wishes can be honored.  To the extent that a child can make his or her wishes known and the adults agree, the child can essentially “decide” where to live.  This is not uncommon, since the child may clearly be more bonded with one parent, and the parents may share the understanding that the child needs to live with the more bonded parent.

Ideally, parents know their children the best and are in the best position to make decisions about how to best meet the needs and best interests of their child.  If parents can come to mutual agreement about living arrangements, then they can also be flexible to revisit which home would be best if the child’s needs change as he or she gets older.  So, if the needs of the child begin to shift as the child ages into the teenage years, the adults may be able to go along with the child’s wishes if, for example, he feels that he would be better off living with Dad for a few years.  As long as everyone agrees, the custody arrangement is flexible and the child’s wishes can carry as much weight as the adults give them.

Situation Two:  One Party Disagrees

In contested cases where the parties (and perhaps the child as well) do not agree on how to resolve the custody matter, then the matter will likely be decided by a judge in domestic court.  In North Carolina domestic cases, there is no specific age at which the child’s opinion must or may be considered.  The judge has no obligation to find out the child’s opinion, or honor it once given.  Instead, the judge has discretion to give the child’s wishes as much (or as little) weight as he finds appropriate under the circumstances.  Judges are tasked solely with determining what is in the child’s best interests, not what the parents or the child prefer.

In determining what is in the child’s best interests, judges look at a number of factors, including the parents’ physical and mental health, the provision of affection and stability, sensitivity to the child’s needs, and the nature of communications between the parents.  Since each judge has complete control to weigh and balance a number of factors, it is very difficult to determine whether the judge’s decision will mirror the wishes of the child.  This is true even if the child is 16 or older and expresses a strong preference; unlike many other states, the judge may determine that the child’s best interests are served by completely overriding the teen’s preference.

Although this standard may be harsh in some cases, the reality is that many judges exercise their discretion to consider more thoughtfully the reasonable wishes of a child as he or she gets older.  Judges are certainly smart enough to know that keeping a child in a home where he or she does not want to stay becomes more and more difficult as the child passes 14, 15, or 16 years old.  Therefore many judges give more consideration to a teenager’s wishes when those wishes correspond to the emotional needs and relationship issues of the teenager.  The bottom line is that, in cases where a judge must determine custody, the judge is bound only by the best interests of the child, and will heed the child’s input only to the extent that it illuminates what is in his or her best interests.

Legal Separation in North Carolina

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Separating from spouse

People often seem to be confused about the process of separating from a spouse.  The requirements for marriage, divorce, and other family law matters are determined by state law, rather than federal law.  Therefore, the laws on these issues vary dramatically from state to state.  Movies, media, and even the experiences of friends in other states therefore often mislead and confuse people about how to legally separate from a spouse in North Carolina.

In North Carolina, in order to get an absolute divorce on the grounds of separation (which is most common), a couple must have been separated for a period of one year.  There is no need to prove fault or obtain a court decree.  Separation simply means that the couple physically lives separate and apart — not under the same roof.  At least one of the parties must intend to cease cohabitation — the intent of the other spouse is irrelevant to the claim.  In North Carolina, there is no need to show that both parties agreed to the separation or to have a decree of the court declaring that they have separated.  After a year has passed since the couple stopped cohabiting, either party can secure an absolute divorce upon proof that the couple has been separated for the statutory period of one year.  Once that is proven, neither spouse can contest the divorce, as long as all other technical requirements have been met.

Even if you have been separated for a year, however, talk with a lawyer before filing for absolute divorce to ensure that you do not forfeit any important claims that may be available in your case.

New Resources for Coparenting

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Successful CoparentingIf you are raising kids after a divorce, you don’t need to be told that even in the best situations, coparenting can be difficult.  In addition to the kids and two parents involved, there are often step-parents, grandparents, extended family, lawyers, parenting coordinators, mediators, court officials, and teachers who have an interest in how your family functions.  In addition, there are the practical issues that arise from coordinating two households, following a court order, sharing expenses, and keeping up with busy schedules.  Add in the emotional components that each family member brings to the situation, and it can be a very trying way to live at times.  As complicated as all of this can be, thousands of families do it (successfully) every day.  They do their best, because they all share a love for the kids at the center of the coparenting relationship.

There are new resources available today to help parents tackle the practical challenges of sharing their children.  Lots of families utilize Google’s shared calendars, and email and text messaging can help high-conflict parents communicate with less arguing.  Even better for many families, there are now online low-cost subscription services that provide a myriad of tools designed specifically to facilitate coparenting.

I learned about one of these services, KidsOnTime, on Twitter this week.  After perusing their website and brochures, I am excited about the range of tools available for my clients and other divorced coparents.  KidsOnTime costs $10 per month for all parents (and step-parents, grandparents, etc), and the tools available include:

  • Online calendar
  • Parent-to-parent messenger
  • Wellness center, for sharing special memories and getting parenting resources
  • Money manager
  • Digital diary
  • Family essentials, which keeps current medical and other important info in one central place
  • Schoolwork planner.

The creators of this service seem to really understand how coparents need to share information, and having it all centralized in one place can help parents focus more on the kids, rather than the logistics.  And they’re not the only ones.  A quick internet search shows that there are other similar services out there, such as Our Family Wizard.  If you are in a high-conflict coparenting situation or would simply like to keep things more organized and smooth between two households, consider whether one of these services might be worth trying for your family.