Lately, I’ve encountered lots of people who are confused about whether North Carolina is a no-fault divorce state. In a word, yes. The answer is that this is a no-fault divorce jurisdiction. So…what does that mean?
A no-fault divorce is one in which neither party has to prove marital fault in order to obtain a divorce. All you have to do to get divorced in NC is (a) be separated for at least one year and one day and (b) one of the parties must have lived in the state for the past six months. You don’t have to give the court any reason that you want to get divorced. Nobody has to have cheated. Nobody has to have committed acts of domestic violence. You don’t have to claim irreconcilable differences. Nobody has to have done anything wrong. The facts and circumstances of your divorce can remain between you and your spouse, as far as the court is concerned. You can get a divorce if you meet the two criteria above.
Now, this doesn’t mean that the circumstances of the marriage and the break-up won’t be part of the case if you or your spouse makes claims for alimony, distribution of property, child support, child custody, etc. In deciding those questions, the court may have lots of questions about what went on in the marriage and who did what. But, just for purposes of getting that divorce decree that dissolves your marriage, you do not have to prove that anyone is at fault. Your spouse also cannot stop you from getting a divorce, provided that you can prove that you have been separated for a year and a day, and you have lived here for the past six months. As long as the necessary paperwork is completed and filed accurately and properly, you are entitled to a divorce whether your spouse wants it or not.
Of course, if you are confused about your rights, or what you can and should claim in a divorce, talk to a family lawyer about your unique circumstances. Some of the claims mentioned above, like alimony and division of property, are lost if they are not asserted before the divorce judgment is granted.
In the heat of the moment, when things are going awry in your marriage, it’s hard to think clearly about all the practical, sometimes scary, aspects of separating from your spouse. If you have time, however, to safely slow down and make a practical plan before moving forward, here are some things to do before you begin the divorce process.
Have you tried counseling? Sometimes you just know that things are over. But if you have doubts and your spouse is willing, it can be so helpful to seek professional counseling, either together or separately. Even if your spouse is not willing to try therapy, it’s beneficial to go on your own. Having a neutral party to talk things over with, get feedback, and focus on what’s important for your well-being is invaluable. In my opinion, a good divorce lawyer with your best interests at heart will always encourage you to seek counseling, or even insist upon it in very tumultuous circumstances.
Get to a lawyer ASAP. Scheduling a consultation with a lawyer does not mean you’re obligated to hire that lawyer or move forward with a separation or divorce at all. It is simply a good idea to get as much information as you can, as early as possible. A lawyer can give you useful advice about protecting yourself, your children, and your finances before you leave the marriage. While friends who have been divorced are a good source of comfort and camaraderie, there is no substitute for sound legal advice.
If you have had an affair, do not confess to anyone before talking to a lawyer. North Carolina is one of the states where adultery is illegal, and even more problematically, a jilted spouse can actually sue their spouse’s lover. Having an affair can cost you (and your paramour) substantially. It can also have drastic consequences on whether you or your spouse will be awarded alimony. If you have been unfaithful and have a guilty conscience, resist the urge to spill your secrets immediately. First, have a confidential meeting with a lawyer to discuss the possible consequences and how to handle them.
Know what your assets are, and put yourself in a strong position to protect them. First of all, if your spouse has been the one who’s in charge of finances, taxes, and investments, the best time to educate yourself is while you’re still living together. You and your lawyer are going to need to know about all of the property, assets, and debts that you and your spouse share. Don’t forget about insurance policies and retirement accounts. It is much easier and less expensive to find out by looking through paperwork in your own home, than to try to uncover everything during the discovery process of your divorce. Talk to your lawyer about what financial documents you should look for and gather for your case. Secondly, when you and your spouse do separate, keep possession of the things you want and need, like your car and at least a portion of the cash in savings. If you’re worried your spouse might sell anything valuable, like heirlooms or collectibles, keep them. Finally, make sure your lawyer knows about any real estate that you and your spouse own, and any belongings that do wind up in your spouse’s possession that you believe should not be. Your lawyer can help you take steps to recover your possessions and protect your real estate from being sold without your consent.
Start preparing for your separate life. Before you actually separate from your spouse, start assembling the basics that you will need to start your new life. Close or freeze joint credit accounts and block access to home equity loans. Close your joint checking and savings accounts and open separate ones. Change the name on utilities if necessary, and change the passwords on accounts that you no longer want your spouse to be able to access. Consider getting a post office box so you can securely receive mail from your lawyer, bank, etc. Again, think strategically and talk with your lawyer about ensuring that your transition will be as simple and well-handled as you can make it.
This list is not exhaustive by any means, but it should give you some things to think about if you’re considering or planning to divorce. Every case is different, so the bottom line with most issues is to talk to your lawyer about the best course of action.
Regardless of your stance on gun rights or your comfort level with guns, all parents worry about their children having access to firearms. If you are going through a separation or divorce, you might be concerned about whether any firearms at your ex’s home are secured away from the children. Or you might worry that the judge will question your judgment or parenting because you keep firearms in your own home. If you own guns, you might wonder whether you should get rid of them or whether they might impact your custody case.
First of all, in cases where domestic violence is alleged and a protective order is issued, the Court will often order the defendant to surrender his or her guns to the Sheriff. Even when violence is not an issue, however, the Court may take gun ownership and safety into consideration in determining custody issues. As you have probably heard if you have ever talked to a lawyer about a custody case, the Court’s sole concern in determining child custody is what is in the best interest of the child. The presence of firearms in the child’s environment is therefore certainly within the purview of the Court.
While safe firearm ownership and storage may be of interest to the Court, there is case law that suggests that the Court must make findings that the parent’s gun ownership specifically endangers the child in some way in order for the Court to factor it into a custody determination. If a witness testifies, for example, that Mom routinely leaves her loaded handgun unattended in her purse or under her pillow where her child could find it, the Court may find that she is endangering her child and order her to either secure her weapon or surrender it until her child reaches 18. On the other hand, a mom who owns numerous firearms, but is vigilant about keeping them properly secured and beyond the reach of her children, is unlikely to be negatively affected in a custody case. Since the judge’s chief concern is always the safety and well-being of the children, a parent who shows the Court that she is a safe and responsible firearm owner probably has little cause for concern about being a gun owner who is involved in a custody case.
It is, of course, wise if you are in a custody dispute, to ensure that all of your firearms and permits are properly documented and updated and that you can provide the Court with evidence (such as photos, testimony of friends, or receipts for gun safes) that your firearms are securely stored in your home. If you anticipate that this will be an issue in your case, discuss it with your attorney early so that you can plan to resolve any concerns of the Court and ensure that your gun ownership does not interfere with your custody case.
Some might find this hard to believe, but divorcing couples sometimes ask if they can share one lawyer. This makes a lot of sense, in theory. If you and your soon-to-be-ex agree about how you will divide your property and raise your children, then you might be eager to simply get the divorce process behind you and move on with life. It seems rational and practical, then, to have one lawyer draft a simple agreement that reflects your wishes, sign it together, and get going.
The answer to the question in the title above, however, is NO. Although such an arrangement might seem like a smart money- and hassle-saving arrangement, there are important reasons why a lawyer cannot represent both a husband and wife in a divorce. The ethical rules for lawyers prohibit representing both parties in an adversarial, or potentially adversarial, proceeding. Even if you are the rare ex-couple that gets along brilliantly, you are still opposing parties in a legal matter. No lawyer can adequately represent both sides of a dispute, without favoring one over the other.
Like anyone going through a divorce, you deserve a lawyer who has only your interests in mind as you navigate the divorce process. Even if you and your spouse agree that your case is cut and dry, if you want legal guidance, you’ll each have to seek your own.
If you’re like me, you probably think of your pets as family. The handsome fella pictured above is my dog, Jesse, who has been my sidekick for almost ten years now. (Of course, I couldn’t resist using his picture for a post about pets.) He was briefly missing the other day when he took off on an unsanctioned run after a stray cat. While I looked for him in a panic, I couldn’t stand the thought that he might not come home. Thankfully, he returned unharmed (and actually seemed pretty proud of himself), but what about divorcing couples who fear that they may never see their pet again because the angry ex won’t share? What do you do if neither spouse can stand the idea of losing the pet in the divorce?
First of all, although we often feel that our pets are family members whose best interests should be considered, legally animals are considered property in North Carolina. This means that they are valued and divided up just like household goods in the divorce proceedings, the same as the wedding china or the furniture. Even more dismaying to animal lovers, the value assigned to the pet is simply how much it would cost to replace, not the value that the owners feel the pet has to them. For example, say a couple cannot agree on who should keep their beloved dog. During the equitable distribution process, the court might assign a value of $50 to the dog, give the dog as property to the wife, and give the husband an extra $50 in other property to make it equal.
Obviously, this is not usually the best solution when two people love their pet(s) equally. Ideally, a divorcing couple should try to work out a solution between themselves. Unlike the court, they can consider the needs of the pet and where the animal will be happier. They know whether the pet needs to stay primarily with the kids, or would do better wherever it can have a bigger yard to safely roam. A couple can even work out a custody agreement to define visitation and support for their pet. Such an agreement is just made as a private contract between them to address their rights and responsibilities with regard to the pet.
There is one important exception to the “animals as property” general rule in North Carolina. The General Assembly wisely included a provision in the domestic violence statute (N.C. Gen. Stat. § 50B-3(a)(8)) that allows a pet to be included in a domestic violence protective order. So in domestic violence situations, the court can order that the victim should have custody of the family pet.
With the arrival of a new year, some people in unhappy relationships begin to look toward a new beginning. If you are considering divorce in 2014, you likely have lots of questions. When it comes to financial issues, there are many things to consider in a divorce, and one important financial aspect can be easy to overlook — Social Security.
There are limitations on when and how much an ex-spouse may receive benefits after divorce. According to the SSA, you can receive benefits based on your ex-spouse’s status if:
Your marriage lasted 10 years or longer;
You are age 62 or older;
You are not remarried;
Your ex-spouse is entitled to Social Security retirement or disability benefits; AND
Your benefit based on your own work record would be lower than your benefit based on your ex-spouse’s record.
As a divorced spouse, you may receive up to 50 percent of your ex-spouse’s full benefit. You must have been divorced for at least two years in order to begin collecting benefits. If you remarry, you cannot collect the ex-spouse’s benefits, unless and until your later marriage ends. Also, if your ex-spouse dies, and you meet all of the criteria above, you may be able to collect “survivor benefits” of up to 100 percent of the ex-spouse’s benefit.
If you are considering divorce and uncertain about your financial options, remember that Social Security benefits may be available to you based on your spouse’s work record. Spend some time perusing the SSA website and consult an expert if you have further questions about your circumstances.
Laura Wasser is a divorce lawyer in California whose clients include a bevy of Hollywood celebrities, but don’t hold her association with Kim Kardashian (and now apparently, Khloe) against her. I was skeptical of the advice of a divorce lawyer with clients who seem to marry and divorce as almost a hobby. What would this Hollywood lawyer say that would have any relevance to my clients in North Carolina? The answer is: plenty. In It Doesn’t Have to Be That Way: How to Divorce Without Destroying Your Family or Bankrupting Yourself, Ms. Wasser gives wise, practical advice about how to move through the process of ending your marriage without ruining your life or your children’s lives.
Wasser’s book is not about dishing celebrity dirt — it’s about her advice on moving through each stage of the divorce process. She pays special attention to keeping the process as cost-effective as possible and helping people reframe the way they see their fading relationships. She is matter-of-fact, and although I suspect that nobody would agree with everything she says about relationships (I don’t!), her insight is valuable. She is especially good when talking about co-parenting with an ex (or several exes), since she is open about her own experiences raising kids with two exes. Among the topics Wasser covers in the book:
Knowing when you should divorce
Finding a lawyer
Dividing assets and liabilities
California law is quite different from North Carolina divorce and family law in some respects. Wasser nevertheless does a good job of addressing the divorce process and what to expect in a way that does apply to North Carolina families. I recommend this book to those thinking about divorce or already in the middle of the process. Not every piece of advice in the book will apply to each person’s situation, and North Carolina law differs in some ways from what she discusses, but overall this is a good primer on how divorcing works, how you can manage it, and how you can thrive when it’s behind you.
*Note: This book is available in my firm’s library for clients to borrow as needed, along with other books on divorce and family law issues.
If you have been involved in a family law case (especially a custody dispute or a divorce where infidelity is an issue), your lawyer has probably talked to you about the importance of documenting everything. I generally think, the more information you can gather, the better. Yes, it will take some time for you or your lawyer to sort through stacks of details about your life looking for the relevant statements, dates, events, and documents. Yes, it is a difficult way to live — cataloguing proof or otherwise documenting every little thing that happens that might have an impact on your case. But when it comes to your property and especially your children, I like the “better safe than sorry” approach.
In some co-parenting situations, calm and effective communication can be difficult. These parents often resolve to communicate primarily through email and text messages. We all know how to keep an email as documentation of communication, but how do you keep a text message for use as potential evidence in court? Here are a few options for documenting communication by text message:
Take screen shots of the messages: search online to find out how to take a screen shot of exactly what appears on your particular type of phone; save the image and print it out to keep or show your lawyer;
SMS Backup+: this is a free app for Android users that automatically backs up your text messages and phone log to your Gmail or Google calendar;
Email My Texts: this is another Android app that costs $4.90 to download and allows you to email, print, and save all of your text messages, as well as export them to a number of other services, like Dropbox or Evernote;
iPhone users: unfortunately, there doesn’t seem to be a reliable app to simply backup or email your iPhone texts like the Android users have; check out this article for advice on how you can keep and access the files that archive your text messages.
Unfortunately for iPhone users, it seems to be a bit more work to document text message conversations than it is for Android users. With an important issue like custody on the line, though, it will likely be worth it. Talk to your lawyer about what types of information and communication you should be documenting, and stay on top of it!
Parental alienation is behavior by one parent in a hostile co-parenting situation that causes “a child to be mentally manipulated or bullied into believing a loving parent is the cause of all their problems, and/or the enemy, to be feared, hated, disrespected and/or avoided.” (See www.paawareness.org for more info.) Unfortunately, this damaging behavior is probably more common than most of us would expect. Parents who are on the receiving end of this type of behavior can face very difficult circumstances. Click the link above to read an article with thoughtful tips to help parents deal with parental alienation.
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.”