Understanding The Divorce Process
People who attempt to navigate the divorce process on their own or without an experienced advocate often get lost and turned around. They may be forced to start over. They may end up spending too much money because they took the long way and missed opportunities.
By working with an attorney in Wilmington who knows the process, you can be confident that there will be no missteps. At The Law Office of L. Bryan Smith, P.C., we are committed to helping you navigate the divorce process with care. Contact us today.
Separation Comes Before Divorce
First, you cannot get divorced until you have been separated for one year. North Carolina is a no-fault divorce state. This means that you do not have to show fault to get divorced. As a result, North Carolina requires that you be physically separated for at least one year prior to filing for divorce. This means that you cannot live in the same house!
Once you are separated, there are typically five legal issues you may need to deal with. I always tell my clients that there are three ways you can deal with any of these issues: You can settle the issues by a separation agreement, you can litigate the issues in the courts or you can ignore the issues. Sometimes, believe it or not, I recommend that clients ignore the issues. There may be good reasons to do so.
The Five Key Aspects Of The Divorce Process
Equitable distribution: Equitable distribution is the division of marital property. Marital property is defined by the North Carolina General Statutes as follow: “All real and personal property acquired by either spouse or both spouses during the course of the marriage and before the date of the separation of the parties, and presently owned, except property determined to be separate property or divisible property…” Note: You lose the right to equitable distribution if your divorce is granted prior to bringing this issue before the courts.
Alimony and post-separation support: Alimony is defined by the North Carolina General Statutes as follows: “An order for payment for the support and maintenance of a spouse or former spouse, periodically or in a lump sum, for a specified or for an indefinite term, ordered in an action for divorce, whether absolute or from bed and board, or in an action for alimony without divorce.” The law requires that alimony be awarded when the court finds that one spouse is a “dependant spouse” and the other spouse is a “supporting spouse” and that an award of alimony is equitable after considering all relevant factors. These “relevant factors” would include issues of fault. Post-separation support is often described as temporary alimony. Note: You lose the right to alimony and post-separation support if your divorce is granted prior to bringing this issue before the courts!
Child custody: Child custody and visitation are always determined based upon the best interest of the child. Many times, however, the parties differ as to what would be in the best interest of the child. When this happens, the court will have to determine what is in fact in the best interest of the child. At trial, the court will hear testimony from both parents and other witnesses. In some cases, even expert witnesses are called to give their opinion on this issue.
Child support: Child support is guideline-driven in North Carolina. The latest North Carolina Child Support Guidelines are available online here: http://www.nccourts.org/Forms/Documents/981.pdf
Estate issues: Have you ever wondered why at a real estate closing in North Carolina, no matter who is the listed owner on the deed, both the husband and the wife have to sign the mortgage or deed of trust at the loan closing? The reason is that in North Carolina, you cannot disinherit a spouse. Although there are exceptions, if you write a spouse out of your will, North Carolina law provides that “the surviving spouse of a decedent who dies domiciled in this state has a right to claim an “elective share…” In lieu of the elective share, a spouse can elect a “life estate in one-third in value of all the real estate of which the deceased spouse was seized and possessed of an estate of inheritance at any time during coverture.”
A spouse can lose this right to the elective share or a life estate in his or her spouse’s property if:
- A spouse from whom or by whom an absolute divorce or marriage annulment has been obtained or from whom a divorce from bed and board has been obtained
- A spouse who voluntarily separates from the other spouse and lives in adultery and such has not been condoned
- A spouse who willfully and without just cause abandons and refuses to live with the other spouse and is not living with the other spouse at the time of such spouse’s death
- A spouse who obtains a divorce the validity of which is not recognized under the laws of this state
- A spouse who knowingly contracts a bigamous marriage
The Issue Of Domestic Violence
Domestic violence is a serious issue in some marriages. There are two avenues in the courts to handle domestic violence issues. These avenues are not mutually exclusive. You can handle domestic violence through the criminal courts by way of criminal charges such as assault and communicating threats. You can also get a restraining order through the civil courts by way of Chapter 50B of the North Carolina General Statutes.