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.
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.
When a judge is deciding on custody issues in North Carolina, the standard he or she must consider is always the “best interests of the child.” It is no different when it comes to the sex lives of the child’s separated parents – the question is whether the parents’ sexual relationships are affecting the best interests of the child. So, sex during separation can certainly have an effect on custody if it impacts the child. This will depend on the circumstances of the relationship. If a parent, for example, engages in sex with numerous partners while the child is in the home, it would not be surprising for a judge to decide that the parent is not acting in the child’s best interests. Circumstances vary, but especially when your kids are involved, it is wise to err on the side of caution. During the separation period, the safest course is to keep any sexual activity confined to times when your child is staying at the other parent’s house. Being responsible and aware of what your children see is both good for your kids, and good for your custody case.
Discovery & Court Testimony
Discovery is the process of both sides gathering information before a court proceeding. This is done through interrogatories, which are written questions that require written answers, and depositions, which are out of court testimony under oath. Depositions usually take place at an attorney’s office, and a court reporter is present to make a transcript of the testimony. In family law cases, questions about the parties’ sexual relationships are common in both discovery and court proceedings. As we’ve seen during this discussion of sex during the separation period, sexual behavior can be relevant to multiple issues during divorce and custody proceedings. Opposing attorneys might also ask intimate questions to put you on the defensive. Thus, sexual and relationship questions are likely to arise during your case. As unfair and invasive as it may seem, your personal life is not necessarily private during a divorce, so you and your lawyer must be prepared to face questions about your behavior, possibly from both a judge and the opposing party.
Bottom Line: Should I, or Shouldn’t I?
So, over the course of three posts, we’ve addressed a number of issues that can arise from having a sexual relationship while you are separated from your spouse. Divorce is complicated – emotionally, financially, and legally. Be honest and realistic with yourself about this issue: sex will most likely make your divorce process even more complicated. Understand and consider the consequences that can follow from your decision. Emotions run high during divorce, and moving on too quickly can make it more difficult to resolve the issues that you and your spouse face. Your best bet is to focus your energy on getting through the separation and resolving the remaining issues of your marriage; save the dating and sex for after the divorce.