One Of The Most Difficult Decisions In Life Is Choosing To Separate From Your Spouse
considering a separation
when do couples CONTEMPLATE A SEPARATION
When your current situation becomes unbearable and something must change, many contemplate a separation. Separation can seem terrifying especially when your lives are intertwined and the thought of leaving becomes heartbreaking if you still love your spouse. It can become even more emotionally draining if your spouse does not want to separate. It is normal to feel overwhelmed when considering all the changes that must be made when separating such as moving into separate residences, the cost of two living spaces, who will pay the bills, whose name is on what accounts, bank accounts, how and what do you tell your children and how will it affect their lives.
What if the separation leads to a divorce rather than time to think and reconciliation? Having an experienced attorney to help guide you through this process makes all the difference whether you choose to reconcile or to move towards a divorce. You need sound and objective advice during this difficult time in your life.
Do's And Don'ts Before Separating
- Contact a divorce lawyer before taking action.
- If you or your spouse were involved in an extramarital affair, talk to your attorney first before discussing it with your spouse.
- Adultery is illegal in the state of North Carolina, admission of an affair can have other significant consequences in the divorce process in North Carolina. If your spouse is a candidate for alimony, any illicit sexual behavior on your part could end up costing you more in additional alimony payments.
- Do not just move out without communicating with your spouse especially if you are the primary breadwinner. This could be considered marital abandonment or desertion.
- Think about how you will share custody of your children with your spouse. The type of custody schedule will depend upon many factors such as, ages of your children, school, childcare, holidays, work and travel obligations, and other factors.
- Protect your finances. Make an inventory of all accounts. You will need to open a checking account in just your name.
Each party will be required to disclose his or her financial information during the divorce, but it doesn’t hurt to have this information for your personal records. You may want to get copies of all of the following information:
- Bank statements
- Tax returns
- Retirement account statements
- Mortgage statements
- Credit card bills
- Other debts
- Real estate records
- Business records
HOW DO I BEGIN THE PROCESS You and your spouse need to be living in different homes, and at least one of you needs to intend that the separation be permanent. You have to be legally separated for one (1) year and a day before filing for an absolute divorce.
PREPARE TO PAY SUPPORT If you are the primary breadwinner in your home, you may be responsible for spousal support plus child support if you have minor children.
Drafting the Separation agreement Separation agreements are generally prepared and negotiated by family law attorneys, who can tailor the agreement to the needs of your family.
Moving into Separate residences You are not legally separated if your relationship has ended but you still live in the same home.
Separation terms A separation agreement sets the agreed-upon terms for dealing with various issues related to the separation, such as which spouse is responsible for certain bills, who will continue to live in the marital home, or where the children will live, and how assets acquired, before, during and after the marriage will be divided.
CHILD VISITATION SCHEDULE Without a custody order, both parents have equal rights to their children at separation.
UNDERSATNDING THE LAW
SEPARATION AND PROPERTY SETTLEMENT AGREEMENTS
In North Carolina, individuals may enter into a Separation Agreement provided said agreement is not inconsistent with public policy. A properly prepared agreement shall be legal, valid and binding in all respects provided that the separation agreement is in writing and acknowledged by both parties before a “certifying officer” as defined in N.C.G.S. §52-10(b).
§ 52-10. Contracts between husband and wife generally; releases.
(a) Contracts between husband and wife not inconsistent with public policy are valid, and any persons of full age about to be married and married persons may, with or without a valuable consideration, release and quitclaim such rights which they might respectively acquire or may have acquired by marriage in the property of each other; and such releases may be pleaded in bar of any action or proceeding for the recovery of the rights and estate so released. No contract or release between husband and wife made during their coverture shall be valid to affect or change any part of the real estate of either spouse, or the accruing income thereof for a longer time than three years next ensuing the making of such contract or release, unless it is in writing and is acknowledged by both parties before a certifying officer. (a1) A contract between a husband and wife made, with or without a valuable consideration, during a period of separation to waive, release, or establish rights and obligations to post separation support, alimony, or spousal support is valid and not inconsistent with public policy. A provision waiving, releasing, or establishing rights and obligations to post separation support, alimony, or spousal support shall remain valid following a period of reconciliation and subsequent separation, if the contract satisfies all of the following requirements:
(1) The contract is in writing.
(2) The provision waiving the rights or obligations is clearly stated in the contract.
(3) The contract was acknowledged by both parties before a certifying officer.
A release made pursuant to this subsection may be pleaded in bar of any action or proceeding for the recovery of the rights released.
(b) Such certifying officer shall be a notary public, or a justice, judge, magistrate, clerk, assistant clerk or deputy clerk of the General Court of Justice, or the equivalent or corresponding officers of the state, territory or foreign country where the acknowledgment is made. Such officer must not be a party to the contract.
(c) This section shall not apply to any judgment of the superior court or other State court of competent jurisdiction, which, by reason of its being consented to by a husband and wife, or their attorneys, may be construed to constitute a contract or release between such husband and wife. (1871-2, c. 193, s. 28; Code, s. 1836; Rev., s. 2108; C.S., s. 2516; 1959, c. 879, s. 12; 1965, c. 878, s. 1; 1977, c. 375, s. 2; 2013-140, s. 1.)
Marital Property Laws In A Divorce
It is important to understand what property you will get to keep and what you will have to split with your spouse, as well as who will be responsible for your marital debts when separating.
Property distribution is referred to as equitable distribution. The court (unless the parties have reached a negotiated agreement) will divide the property owned by you and your spouse. It is important to remember that in North Carolina you must have a claim for equitable distribution pending prior to the entry of a judgment for absolute divorce or your rights to an equitable distribution of your property may be forever gone.
The three types of property, which are involved, in the Equitable Distribution Process are Separate Property, Marital Property and Divisible Property.
EQUITABLE DISTRIBUTION PROCESS
and INTERIM DISTRIBUTION
During the equitable distribution process, a court may distribute property prior to entering a final judgment. The court can make an “interim distribution” of property which means the court can upon proper motion by either party, distribute to one party certain items of property they request unless good cause is shown that such a distribution should not be made. Normally an equal division of Marital Property is considered to be fair and equitable. There are thirteen (13) statutory factors the court must consider in deciding whether an equal division is appropriate in your case.
13 STATORY FACTORS
CONSIDERED OF EACH PARTY
- Income, property & debts of a party;
- Support obligations from prior marriages;
- Length of marriage, age & health;
- Needs of custodial spouse to own or to possess the marital home & household effects;
- Expectation of retirement benefits which are separate property;
- Efforts made by each spouse to acquire property;
- Contributions of one spouse to the education of the other;
- Direct contributions that increase the value of separate property;
- Liquid or non-liquid nature of property;
- Difficulty in valuing interest in a business;
- Tax consequences to each party;
- Actions taken by either party to preserve or waste marital assets; &
- Other factors the court finds to be relevant.
There are 3 types of property, which are involved, in the Equitable Distribution Process.
1. Separate Property
OWNED BY EITHER SPOUSE
“Separate property” includes all property owned by either spouse before the marriage, property acquired during the marriage by one spouse by inheritance or potentially a gift from a third party and property acquired after the date of separation with post-separation earnings. A gift from one spouse to the other during the marriage or a gift to one spouse only during the marriage is marital property unless the donor states at the time of the conveyance that it is intended to be separate property
2. Marital Property
“Marital Property” includes all property presently owned that was acquired during the marriage except property determined to be “separate property”. “Marital property” includes all vested pension and retirement benefits.
3. Divisible Property