There a many factors and important things that an attorney can tell you about the process of separation and divorce in North Carolina. Every person thinking about separating should meet with a lawyer before making any major decisions regarding their assets, their family or their lives. All divorces are different just like all relationships in life are different. Talking to a lawyer will help you figure out how much assistance, if any, you need in this process and how best you can proceed. At McCollum Law, PC we believe in looking at all factors and working with the individual for the best outcome possible. Here are 5 things to consider:
1 – How To Start
The law in North Carolina provides two ways or methods to obtain a divorce: (1) A full year’s separation from your spouse (which means 1 year and 1 day) and (2) incurable insanity by either party. As one can imagine the overwhelming majority of divorces are granted based on a year’s separation. Establishing separation is not a difficult process, but to protect yourself, you should seek the counsel of a lawyer before making a decision in this regard.
2 – Going to Court or Not
You don’t have a to go to court and fight. While someone will need a judge to sign off on your divorce at some point, you don’t need to go to court and have decisions made about your family or your assets. Generally speaking, Separation Agreements can be very useful to parties going through a separation and divorce. You can address and agree on areas such as how to distribute your assets, how to handle debts, alimony/ spousal support, custody and child support (although custody and child support can always be reopened and changed by a court). It is important to know that you can work together with attorneys and your spouse through this process to address many, if not all, of these issues yourselves and save the difficult and often expensive process of handling them in court.
3 – Child Custody
It is important to note that if you are unable to make a decision regarding the custody and care of your children and child support, a judge will be making that decision for you. This will be based on the judge’s determination of what is in the best interest of the child. North Carolina law does not favor the mother over the father or visa versa. It is important to note that child support and visitation or custody aren’t necessarily related, meaning because one parent isn’t payment child support doesn’t mean they will not be able to have visitation with the child. Generally speaking, when couples are able to make these decisions for themselves it provides a better solution for all involved.
An added point, if you believe that you are entitled to child support, you need to file for it in court as soon as possible. This doesn’t mean you can’t file and agree prior to going to court, but if you are forced to go to court, the judge will award child support and it will be retroactive to the date of filing, that means you will get the support starting from when you filed your complaint for child support, not the date that your court date occurs.
4 – Adultery
If you have committed adultery, please do not admit this without speaking to an attorney. Regardless of your situation and regardless of any desire that you may have to come clean or be honest, and this may be what you decide to do, it is better for you to know the legal implications of disclosing this information. Adultery is actually illegal in North Carolina, there are in some cases actions that your spouse can take against the person you committed adultery with, and there are other implications, that can put you at a severe disadvantage, especially when it comes to alimony payments. At McCollum Law, PC we do not pass judgement, but we do believe that everyone should make important decisions with an adequate understanding of the facts and the legal implications of what they are doing.
5 – Dating During Separation
Many people ask about dating during separation. This is a complicated question and one that you should discuss with your legal advisor. There are a number of complications related to dating. Dating during separation can be used as evidence against you in proceedings relating to alimony if it is evidence that you committed adultery during the marriage, you should speak to a lawyer to understand if dating puts you at risk in this regard. There can also be implications in your custody dispute, for example having an overnight guest in the presence of your children can be grounds for denial of your custody or your visitation application and/ or rights. Again, this is a complicated area, but an area that requires your attention and we would advise you to speak with our office or your legal counsel before dating.
Divorce is very complicated in this and any state, this list is meant to give you some ideas about areas that are important to consider, but it is in no way and exhaustive list of matters to understand or things to consider about this subject. We encourage you to seek legal counsel to fully understand your rights and the implications of your part and future actions. Please call our office and set up a time for you to come in and meet with us.