Information on Divorce & Common Questions

“I hear my friends and family members using words like ‘litigation’ and ‘separation papers.’ What do they mean by those words?”

Litigation— Means you’re “going to court.” If you are in litigation, or are planning to litigate, a lawsuit must be filed, and it must be served on the other party to start the lawsuit. Service is typically accomplished either by the local sheriff’s department, or by certified mail. Remember, when you litigate, you will be letting a judge make the decisions, taking all of the decision making abilities out of yours and your spouse’s hands. Keep this in mind before you decide to take your matter to court, because once you go to court, you are likely to be there for quite a long time.

Settlement— Most people do not want to go to court. The cost and time alone are reason enough to try to reach an agreement outside of court. The majority of family law cases are resolved by settlement. If you want to have more control and input into the final outcome, then you can decide the terms of your separation, alimony, child support or child custody, by entering into an Agreement with your spouse. In North Carolina, a settlement by written agreement requires the notarized signature of both parties, which of course, requires the agreement of both parties.

Separation Agreement (also known as “separation papers”) — When you and your spouse reach an agreement, it is memorialized into a Separation Agreement and Property Settlement. This is a document containing the terms of the Agreement reached by you and your spouse. It can contain terms for division of property, alimony, child support and child custody. As previously stated, both parties sign a Separation Agreement, and it is notarized to be a valid document. This document cannot be later modified except by agreement between the parties. In other words, a judge cannot change the terms of your Separation Agreement. That can only be done by you and your spouse, and must be done in writing and notarized to be valid. At the Stanback Law Firm, as a general rule, we do not file Separation Agreements. They remain private contracts between you and your spouse, and are not placed in the public record.

Consent Order— Sometimes, parties go to court, believing they cannot reach an agreement, and find that they actually can! If you and your spouse are already in litigation, but you reach an Agreement prior to a judge rendering a ruling, you can enter into a Consent Order. This is a written agreement between you and your spouse that can contain the same terms as a Separation Agreement. The main difference between a Separation Agreement and a Consent Order is that a Consent Order is also signed by a judge, and is filed with the Court. Since a Consent Order is signed by a judge, that means the terms have been adopted by the Court, andtherefore may be modified by order of the Court, unlike a Separation Agreement.

Court Order— Unfortunately, sometimes parties are unable to reach an agreement. In litigation, when the judge renders his or her decision, it is memorialized into a Court Order. This is also signed by the judge and filed with the Court. The difference between a Court Order and a Consent Order is that the judge has made the decisions about the terms, not the parties, and the parties do not sign a Court Order, only the judge. TOP OF PAGE

What happens when you have an agreement or a court order, and the other party doesn’t
follow the terms?

A Separation Agreement can be enforced by filing a breach of contract action in District Court against the breaching party. This is a civil action, similar any other civil action, and can take several months to resolve.

Both a Consent Order and a Court Order can be enforced by the contempt powers of the Court. Typically, you would file a Motion to Show Cause against the breaching party, and may be able to resolve the issue in a matter of days, instead of months. TOP OF PAGE

My spouse and I are separating, what is the first thing I should do?

The first thing you should do is sit down and make a plan. How are you and your spouse going to separate? Who is moving out of the house? How are we going to tell the children? When is the separation going to occur? Even if you cannot answer all of those questions right away, beginning the process of thinking about those questions is a good first step.

The next thing you should do is start gathering information. Start looking for copies of important financial documents, such as mortgage information, bank account statements, credit card and other debt statements, retirement statements, insurance policies, tax returns and paystubs. If you and your spouse are still communicating with each other, ask him or her for copies of any documents that you do not have access to, such as separate bank and credit card accounts, paystubs, and retirement statements. Do not access your spouse’s separate account on your own by going online to get the information unless you have their express permission to do so at that time. This is a violation of federal wiretapping laws, and you can be prosecuted. If your spouse is unwilling to provide that information right away, don’t panic! Often in the beginning stages of our settlement negotiations with other attorneys, we voluntarily exchange documents and get the information we need. However, if you are able to find statements of your spouse’s accounts in your house (paper copies), you can make copies of those documents to provide to your attorney. Again, it is important that your attorney gets an accurate picture of your financial situation, so the more information you can gather, the clearer that picture becomes. TOP OF PAGE

How do I know when I’m legally separated in North Carolina?

In North Carolina, you do not need a document to show that you and your spouse are legally separated. Once you are living in separate houses, and at least one of you has the intent to remain living separately, then you are legally separated. Divorce in North Carolina is based on a one-year separation. So, once you and your spouse have been legally separated for one year and one day from the date of separation, you may file for divorce.

If your spouse moves out of the house, you may change the locks on your house. If you are planning to do this, you should tell your spouse that the locks have been changed once you have changed them. Additionally, you should tell your spouse that they are not to attempt to come into the house without your permission. Many people believe that as long as their name is on the deed or mortgage to the house, that they are entitled to enter the property at any time. That is not true, if you are the spouse that has moved out of the house. In North Carolina, once a spouse has moved out of the house, if he or she attempts to return to the house without other spouse’s permission, it is a violation of the Domestic Criminal Trespass law, and is a misdemeanor crime (N.C.G.S. § 14-134.3). However, you need to make it clear to your spouse that you do not want them on the property. Just a little tip: Changing the locks, etc. is not foolproof. If you have children that stay at home in the afternoon, it is likely they will let the other parent into the house even while you are gone. You should also change the frequency on your garage door opener and your security alarm codes when you change the locks.

Finally, you should talk to an attorney to find out what your legal options and obligations will be. Check in with your children’s teachers, and let them know that your children may be exhibiting some signs of stress in the coming weeks and months, and to keep you and your spouse informed of those changes. Go to your family and friends for emotional support, not for legal advice. Everyone has a story of a friend’s divorce that went horribly wrong. Be assured that every case is different, and even if the circumstances sound similar, that is all it is: a similarity. Your attorney may handle your case in a vastly different manner than your friend’s attorney, not because your friend’s attorney did a bad job, but because your friend’s situation was truly different from your own. The same rule applies to that family member that appeared to get rich from his or her divorce. Remember, just because it went extremely well or extremely poorly for someone you know, does not mean your divorce will be the same.

Separation and divorce can be emotionally difficult, but there are many avenues that can be helpful to you in this stressful time. Talk to a licensed therapist or counselor, a member of the clergy, or join a divorce support group like DivorceCare, or Divorce Care for Kids.  TOP OF PAGE

What is Equitable Distribution?

Equitable Distribution or E.D. as it is known to attorneys is the distribution of your property. What is property? It is everything you own, from your house, cars, and furniture, to your bank accounts, retirement accounts, insurance policies, credit cards, business interests and student loans. It is everything you would call an “asset” or a “debt.”

What do we do with the property? In North Carolina, we have to first identify the property, then we classify it as either marital or separate property, we place a value on it, then we distribute it.

  • Marital Property: To classify the property we have to know when it became your property and how you received it. In North Carolina, if you purchased a sofa during the marriage, and put it into your marital residence, it is marital property. If you earned a salary during the marriage, it is marital property. Generally, if you incurred a credit card debt or any other debt during the marriage, and the debt was incurred for a marital purpose, it is a marital debt, regardless of whether or not it is a joint account.
  • Separate Property: You can have separate property too! In North Carolina, if you owned the property prior to the marriage, and you still own it, it is your separate property. If you inherited property, or were given a gift during the marriage by someone other than your spouse, then that property is your separate property. Marital and separate property do not change forms, generally. The only “exception” is real property (land or a house). Talk to a lawyer to explain how real property in North Carolina can be re-classified.

In valuing property, we will often use the date of separation value of the property. That means, we will look at bank statements, retirement account statements, credit card statements, etc., to determine what the value of or the balance on the property was as close to the date of separation as possible. If no statements of value are available, we will need to bring in an expert to tell us how to value a piece of property. We will often use appraisers to help us determine the value of a house. We will also use Certified Public Accountants or other financial experts who specialize in business valuations to help us determine how much a business owned by one of the parties is worth.

In distributing property, we start by looking at the “big ticket” items. Those things would be your house, vehicles, retirement and bank accounts, and business interests. Those are the pieces of property that have the most monetary value, and will usually drive the negotiation toward completion. That is not to say that your furniture and Hummel collections are not important. On the contrary! Many people have valuable antique collections and of course, pieces of furniture that have sentimental value. In North Carolina, the courts will divide your marital property equally, unless you can provide it with some reason why you should receive more than your spouse. An example of a possible reason for an unequal distribution could be that you are disabled and unable to work, and do not have any money on which to retire, so you are asking the court to give you more than 50% of the marital property so that you can secure more money for your retirement, while your spouse continues to work and earn retirement. TOP OF PAGE

Am I eligible for alimony?

In North Carolina, you must show that you are a dependent spouse in order to be eligible for alimony. That means you make less money than your spouse, and that you are actually and substantially dependent upon your spouse for maintenance and support, or that you are substantially in need of maintenance or support from your spouse. (N.C.G.S. § 50-16.1A(2)). The supporting spouse is not entitled to alimony in North Carolina. Besides dependency, the court can consider fault in making a determination of an alimony award. The #1 area of fault is adultery, or “marital misconduct” under the statute. If you are the supporting spouse, and you committed adultery during the marriage, the law says you shall pay alimony. If you are the dependent spouse, and you committed adultery during the marriage, the law says you shall not receive alimony. If both spouses cheated, it is in the court’s discretion as to whether or not alimony may be awarded. Besides adultery, there are several other areas of fault that can be considered, such as alcohol and drug abuse of one party, physical abuse, when one spouse makes the living situation so bad that the other spouse is forced to move out (i.e. abuse), extreme verbal abuse (“indignities”), abandonment, reckless spending of income, failure to provide financial support such that it makes life burdensome for the other spouse.

The amount and length of alimony the can be based on many factors. Generally, the court will look at whether or not there has been any fault of either spouse; the length of the marriage; the earnings and earning capacity of each spouse; the ages, physical, mental and emotional conditions of each spouse; the standard of living during the marriage, and several other factors that help the court make its decision about the amount a length of alimony. This is the most difficult part of any divorce, because as attorney’s we can only guess based on our experiences, how much an alimony award will be and how long it will last. However, there is a growing trend toward “rehabilitative” alimony in North Carolina. That means, some judges are giving a higher award of alimony for a shorter period of time to allow the dependent spouse to “get back on their feet,” and often to allow that person to obtain employment or to allow time for teenage children to graduate from high school and move out of the marital residence.

One of the other things considered when making an alimony award is the tax consequences of alimony. The person paying the alimony will receive a tax deduction for the alimony payment, while the person receiving the alimony will have to report the alimony he or she receives as income on their taxes. So, when determining your reasonable monthly expenses and what you need in alimony in order to continue paying the bills, we will “gross up” the actual payment to take into consideration that you will be paying taxes on the alimony you receive. TOP OF PAGE

How much child support can I receive?

Child support in North Carolina is usually determined by using the North Carolina Child Support Guidelines. It is presumed that use of the Guidelines and the accompanying child support worksheets will provide enough support to meet the reasonable needs of the child for health, education and maintenance. (N.C.G.S. §50-13.4(c)). The Guidelines take the gross monthly incomes of you and your spouse, the costs of child care, health insurance premiums for your children, your responsibility for your other children that are not the children of your spouse, and any extraordinary expenses. Your gross monthly income, according to the Guidelines, is income from any source, whether you are an employee or self-employed, including but not limited to salary, wages, bonuses, commissions, dividends, severance pay, and investment income. (North Carolina Child Support Guidelines) The worksheets used by the Guidelines are based on the custody schedule you have in place. If you have custody of your child at least 242 overnights per year, then you should use Worksheet A, the “Primary Custody” worksheet. If your child spends 124 overnights per year with your spouse, you should use Worksheet B, the “Joint Custody or Shared” worksheet. Worksheet B is often used by parents sharing 50/50
custody of their children. If you have more than one child, and one child, for instance, will live with you primarily, and the other child will live with your spouse most of the time, you should use Worksheet C, the “Split Custody” worksheet. This is not the same as a 50/50 custody arrangement. To use Worksheet C, you must have primary custody of one of your children, and they must live with you more than 50% of the time, while the other child lives with your spouse more than 50% of the time. You can find more information on how the child support worksheets operate, as well as Worksheets A, B & C on the North Caroline Child Support Enforcement website.

Child support generally terminates when the child turns 18 years old. If your child has turned 18, but still has not graduated from high school, child support may continue until the child has graduated, but not beyond age 20, whether he or she has graduated or not. Child support does not extend to children who have graduated and are attending college. North Carolina courts do not have the power to order a parent to pay college expenses for a child. You may agree that one or both parents will contribute to college expenses, but it is not something that you can be awarded in court. TOP OF PAGE

Who gets custody of the kids?

A determination of custody is based on the best interests of the minor children. (N.C.G.S. § 50-13.1) There is no presumption in North Carolina that a mother will get custody of the children. North Carolina does not have a gender preference in custody matters. The court will look at which parent will best promote the interests and welfare of the children. If a parent requests joint custody, it shall be considered by the court. The court can award joint custody or may award sole custody of the minor children to one parent while the other parent has visitation. How does the court determine which parent will best promote the best interests and welfare of the children? The court will look at many factors, but some factors include the children’s physical, mental and emotional states, their educational histories, their religious or spiritual backgrounds, their ages, and development. The court will also look at, among other things, which parent is able to spend more time with the children, which parent has historically given more time and attention to the children, the physical, mental and emotional states of each parent, and each parent’s commitment to educational, moral, spiritual and emotional development. The children’s preferences can be considered, depending upon the age of the child expressing the preference. However, a judge is not required to consider a child’s preference, particularly if that child’s preference does not serve his or her best interests.

Another consideration in child custody is where a child custody action should take place. We are governed by the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA), which is codified in North Carolina General Statute § 50A-201. This statute provides that a court of the State of North Carolina has jurisdiction to make an initial child custody determination only if North Carolina is the home state of the child. That means that at the time the child custody action is filed, the child is currently living in North Carolina or if the child is no longer in North Carolina, he or she lived in the state for at least six (6) months prior to the filing of the action, and one parent still lives in North Carolina. Section 50A-201 provides for a few other instances when a court in North Carolina may exercise jurisdiction over an initial child custody action.

Child custody, like alimony, can be one of the most difficult parts of any settlement negotiation, because it is such a highly emotional subject. Each parent thinks they are the best person for the children to be with, and the children are often caught in the middle. At Stanback Law Firm, PLLC, we encourage our clients to take a step back and look at the custody situation from the child’s perspective. It is easy for parents to get caught up in their own needs and lose sight of what the children need, which can often mean a significant amount of time with both parents. In a collaborative divorce negotiation, we ask the parties to talk to each other about their needs in a custody negotiation, then to talk about how each parent’s needs can be met, while primarily meeting the needs of their children. Approaching a custody negotiation from that perspective can result in creative custody schedules that work for everyone involved. TOP OF PAGE

How do I get divorced?

Once you have been separated from your spouse for one year and one day, you may file for divorce. (N.C.G.S. § 50-6) So, if you and your spouse separated on November 12, 2010, you can file for divorce on November 13, 2011. That does not mean you are automatically divorced. To get divorced, you must first file a divorce complaint. North Carolina is a “no fault” divorce state. So, if you or your spouse committed adultery, or are divorcing due to “irreconcilable differences” that is not relevant to your divorce complaint. The only factors relevant to the court are that (a) you and your spouse have been living separate and apart for at least one (1) year, (b) that you have continued to live separate and apart with the intent to remain separated, and (c) that at least one of you, you or your spouse, has to have lived in North Carolina for at least six (6) months prior to filing the divorce action.

If you and your spouse have not signed a Separation Agreement, entered into a Consent Order or received a Court Order that distributes your marital and divisible property, and provides for alimony, and you get divorced without having equitable distribution and alimony resolved, you will lose the right to equitable distribution and alimony!!!

Many counties now have Do-It-Yourself divorce kits for people to file for divorce on their own. Before you file for divorce with one of these kits consult an attorney to make sure that you do not waive any of your marital rights to property distribution or alimony. TOP OF PAGE

I think my spouse is cheating on me…what can I do about it?

Many people will hire a private investigator to find evidence of adultery in their marriage. That can be a costly endeavor, and it is certainly possible that even the best private investigator may not be able to get you evidence of cheating. What else can you do? If you have access to joint accounts like bank accounts and credit card accounts, you may find evidence of strange expenses in those statements. If the family cell phone bill shows a large number of phone calls to a number you don’t recognize at odd times that may also be good evidence. Of course, witnesses are usually a good source of evidence.

What you cannot do is check your spouse’s email account, cell phone voicemail, or access any password protected online accounts on which you are not a joint holder of the account, or if you do not have your spouse’s permission to access the account at that time. That is a violation of federal wiretapping laws and you can be prosecuted for that offense. Further, any evidence you may find by doing so cannot be used in court or by your attorney in negotiations, and may even subject your attorney to criminal liability if they view illegally obtained evidence. TOP OF PAGE

What is collaborative divorce?

Collaborative divorce is an alternate method of negotiating a divorce settlement. The tenants of collaborative divorce include a free and open exchange of information, a needs-based negotiation, and freedom from potential litigation of the matters. Collaborative sessions are called “4-ways,” and are usually attended by the parties and their respective collaborative attorneys. In some cases, a mental health professional, a financial expert or even another attorney whose expertise is in a different area of law may also be included in the 4-way sessions. Each session usually lasts approximately 2 hours, and may occur as often as the parties wish. It is typical for the parties to have homework after each session to prepare them for the next session, as well as for the parties to meet on their own in between each session. The key to collaborative divorce is communication. If you and your spouse are able to sit together for several sessions and make an attempt at communicating your needs to the other, then collaborative divorce may be a good fit for you. The attorney’s job in a collaborative divorce model differs from your typical representation. While we are still obligated to represent your interests, provide you with legal advice, and keep your confidences, our job in a collaborative model is largely to help you and your spouse to communicate your needs to each other. The two attorneys work together as a team to help frame the conversations in a way that allows each party to be heard on individual issues, and help the parties move toward resolution of those issues.

One of the main tenants of the collaborative model is that it is done without the threat of court looming in the background. The parties agree in the pledge that they are going to attempt to work out a settlement, and not go to court to resolve their differences. The attorneys are also making the same pledge. So, if the parties are unable to resolve their case in the collaborative model, each party has to hire new attorneys.

Once the parties have reached their agreements, the attorneys will work together to draft a Separation Agreement that reflects those agreements for the parties to sign. TOP OF PAGE

How does mediation work?

Mediation is another form of dispute resolution, like collaborative divorce. A mediator is a neutral 3rd party hired by the parties to essentially referee their case. However, unlike a true referee, the mediator does not make any decisions. Mediations may take place between the parties and the mediator only, or the parties may each hire their own attorneys. The mediator can be an attorney or someone else who has been trained as a mediator. However, the mediator cannot provide the parties with legal advice, even if the mediator is an attorney. The parties may enter into a Separation Agreement based on what they have negotiated in mediation. That Agreement should be drafted by an attorney, and each party should seek legal counsel before signing any Agreement. TOP OF PAGE

I am a victim of domestic violence. What do I do?

If you are a victim of domestic violence, CONTACT THE POLICE IMMEDIATELY! In most counties, you may file a domestic violence complaint against a perpetrator without hiring an attorney. Once you have contacted the police and filed a police report of the incident, you should also go to your local court house and ask the Civil District Court Clerk how to file a Domestic Violence complaint so that you may get a Domestic Violence Protective Order (DVPO). The DVPO can have the perpetrator immediately evicted from the home, and all firearms owned by the person confiscated, based on an ex parte order of protection. Ex Parte means “on your own.” That is the initial DVPO that may be obtained without the perpetrator being present, and is based solely on your testimony that day. Once he or she has been served with the complaint by the sheriff, you and the perpetrator will return to court within ten (10) days of the ex parte hearing for a full hearing. At that time, the court will determine if there is enough evidence for a twelve (12) month protective order. You may also be able to receive an Order for temporary spousal support, temporary child custody and temporary child support during that hearing.

Domestic violence is a civil action in North Carolina, and the DVPO is a civil adjudication, not criminal. You may also pursue criminal charges for assault against the perpetrator at the same time.

You should also contact the local rape crisis/domestic violence center in your area. TOP OF PAGE

How long is the whole process going to take?

Depending on what kind of process you choose, completion of your Separation Agreement or litigation of your case can take anywhere from 30 days to 1 year to complete. It largely depends on the cooperation of each party. TOP OF PAGE

How long does it take to get divorced once my Separation Agreement has been signed?

Again, you have to be separated for one year and one day, regardless of when you signed your Separation Agreement. Once the divorce complaint has been filed, it usually takes anywhere from 60-75 days to receive a final judgment of divorce. TOP OF PAGE

What if my spouse and I have sex during our separation?

Don’t panic! You can still get divorced, if you so desire. Isolated incidents of sexual relations between separated spouses does not stop the one (1) clock from running. However, if you and your spouse have resumed a dating relationship, and are holding yourselves out to be husband and wife, then it can stop the one (1) year clock from running. TOP OF PAGE

Can I date once I am separated or after I sign a separation agreement?

No. Adultery is a crime in North Carolina. So, if you are still legally married, whether you’ve signed a separation agreement or not, if you are having a romantic relationship with another person, then you could be guilty of a misdemeanor crime. TOP OF PAGE

How much is it going to cost me to get divorced?

The cost to get an absolute divorce can run from approximately $500-$1,000. However, the cost to draft and negotiate a Separation Agreement can run from $3,000-$10,000 or more, depending on the complexity of the case. If you go to court to litigate all of the issues (ED, Alimony, Child Support, Child Custody, and any Temporary Orders), instead of settling any of the matters with an agreement, it can be quite expensive. Total litigation costs in the Triangle area seem to be around $10,000-$50,000 or more, again, depending on the complexity of the case. TOP OF PAGE

How do I pay for representation?

Many parties will use funds from the joint checking account, credit cards, available credit on home equity loans or even borrow money from family members to pay their legal fees. TOP OF PAGE

What if I don’t live in Wake, Durham, or Orange County?

If you and your spouse live in a surrounding county, and would like to try to negotiate a settlement, the Stanback Law Firm can still help you. The majority of cases handled by the Stanback Law Firm are in Wake County. We only occasionally go to Durham and Orange Counties. However, we do not litigate cases outside of Wake, Durham or Orange counties. TOP OF PAGE

I’m still trying to figure out what to do. How do I get more information on divorce?

You can contact our office to set up a confidential initial consultation. Our initial consultation fee is $250.00.* TOP OF PAGE

*All fees are subject to change without notice.