No one gets married believing they will eventually wind up getting divorced. However, as most people well know, up to half of all marriages in the U.S. will end in divorce. If your marriage has reached that point, it’s time to retain qualified legal representation. Divorce is more than just the termination of marriage. Other issues, including child custody and property, must be settled between spouses. And without a knowledgeable attorney in your corner, you could be at a significant disadvantage.
Your children, your wealth, your future – there’s simply too much on the line to neglect the need for competent counsel. If divorce is on your horizon, the family law attorneys of Patrick, Harper & Dixon can help.
The Basics Of North Carolina Divorce
Divorce, which is also called absolute divorce, is the legal termination of a marriage. North Carolina is a no-fault divorce state, meaning spouses do not have to allege fault to obtain an absolute divorce. Instead, spouses must be living separately for at least one year before either of them can file for divorce. During this time, the spouses must be actually separated; they cannot live under the same roof.
Another requirement is that at least one spouse must have lived in North Carolina for at least six months before commencing the divorce. Once the above criteria have been met, either spouse can file a lawsuit asking for divorce.
Most spouses will resolve issues arising out of their marriage during their one-year separation period. This is often done by way of a written separation agreement. The claims that spouses address during their one-year separation typically include:
- Post-separation support and alimony (spousal maintenance)
- Equitable distribution (property and debt division)
- Child custody
- Child support
It is important to note that alimony and equitable distribution claims must be either settled (by way of a separation agreement) or pending as a lawsuit at the time the court grants the absolute divorce. If these claims have not been resolved or are not pending by that date, they are forever lost.
Also, it’s a good idea for you to maintain your own separate claims for these two items rather than rely on your spouse to do so. For example, if your spouse has filed for alimony and equitable distribution, you should counterclaim and make your own allegations regarding the same. If you fail to do this by the time your divorce is granted, your spouse could voluntarily dismiss his or her own claims and then you won’t be able to seek them.
What Is A Separation Agreement?
As mentioned above, spouses routinely use their one-year separation period to resolve most issues arising out of their marriage. A separation agreement is a written contract between the parties. While not required, it can save substantial time and money versus protracted litigation. Some separation agreements address all matters between the spouses, while others address some and reserve the rest for court. Separation agreements must be signed and notarized by both spouses; your spouse cannot compel you to sign one.
In some cases, the parties will keep the separation agreement as a private contract and then obtain their divorce once the one-year separation period has passed. In other cases, however, parties will agree to make the separation part of the court’s absolute divorce decree. This process, known as incorporation, changes the agreement from a contract to a court order.
Incorporation has both advantages and disadvantages. One major advantage is the available remedies in the event one party fails to abide by the original separation agreement. A separation agreement that is not incorporated remains a contract, and the remedy for a violation is to file a breach of contract action. Conversely, an incorporated agreement, because it’s a court order, can be enforced through the court’s contempt powers. This is typically an easier and quicker way of compelling the other party to live up to the agreement.
On the other hand, since incorporation changes what was a contract into a court order, the judge may have the power to alter terms in the original agreement. That’s because as an order, the incorporated agreement is subject to state law and not necessarily what you and your spouse privately agreed to. You should talk to an attorney to learn more about the pros and cons of incorporating your separation agreement.
Not everything can be agreed to in a separation agreement. For instance, the agreement cannot grant an absolute divorce; only the court can. Also, the parties cannot agree to waive child support as this is against public policy. However, parties can (and often do) agree to separation agreement terms that a judge has no power to order. For example, the parties can agree that one of them will pay for a child’s college tuition. Courts generally cannot order this.
Divorce Versus Annulment Versus Divorce From Bed And Board
Absolute divorce should not be confused with an annulment or a divorce from bed and board. An annulment voids a marriage as if it never happened. It can only be granted in limited circumstances, for example, if one spouse was mentally incompetent at the time of the marriage. Simply changing your mind after getting married is not sufficient to obtain an annulment.
Divorce from bed and board is a fault-based remedy that, despite its name, does not actually terminate the marriage. Rather, it is used to force a spouse to leave the marital residence if that spouse does not want to voluntarily separate. In other words, it is a court-ordered separation. The parties still must wait the required one-year period to obtain an absolute divorce.
A party wishing to file for divorce from bed and board must allege fault. In North Carolina, that includes:
- Abandonment
- Maliciously turning out of doors (being kicked out)
- Cruel or barbarous treatment that endangered your life
- Indignities that render your condition intolerable and burdensome
- Excessive drug or alcohol use
- Adultery
Contact Our Hickory Divorce Attorney
Since divorce is almost always more than simply ending the marriage, it’s important to consult with an experienced lawyer. Let the dedicated team at Patrick, Harper & Dixon go to work for you. Call today to schedule your confidential consultation.
