How Does Divorce Work?
Divorce is the process by which a couple dissolves their marriage, which then allows them to remarry if they so desire. It does not address issues of child custody, child support, alimony or property division.
The most common type of divorce in North Carolina is called an absolute divorce and it requires spouses to be separated for at least a year and a day prior to filing the divorce complaint. In addition to the one year and a day separation requirement, at least one spouse must live in North Carolina for the six months prior to filing the divorce complaint.
How Does Separation Work?
Separated means that the parties are living in separate residences and at least one party has the intent to permanently end the marital relationship. If during the period of separation the parties reconcile or resume the marital relationship, then they are no longer separated and the clock will have to restart upon a subsequent separation. Courts look to the totality of the circumstances to determine if resumption of the marital relationship has occurred. Isolated incidents of sexual intercourse between the parties during the separation do not cause the separation clock to start over.
Beginning The Divorce Process
Once a married couple has been separated for at least a year and a day, either party may file a divorce complaint along with several other documents and serve the opposing party. Upon receiving confirmation that the opposing party was served, an Affidavit of Service will be filed with the court.
Generally, absolute divorces are not contested, so after waiting the statutory period without receiving an answer to the complaint, a Motion for Summary Judgment and a Notice of Hearing should be filed and a hearing scheduled. If your absolute divorce is contested, you will have to testify at the hearing. If the judge finds that all the statutory requirements have been followed, he or she should sign three copies of the Absolute Divorce Judgment and a Certificate of Absolute Divorce. The Absolute Divorce is finalized once these documents are signed by the judge, filed with the clerk and copies sent to the opposing party.
While divorce usually involves a wide range of issues, here are three of the most common ones that we handle:
- Child custody and visitation — We represent fathers and mothers who want to gain physical custody, legal custody or visitation rights. Depending on your needs, we can help negotiate a custody agreement or take the matter to trial.
- Asset division — Don't get divorced without protecting your right to any marital property and assets. If you allow the divorce to be finalized without asserting a claim for equitable distribution, you will be barred from asking the court to give you your share of marital property. Frequently, clients are surprised to learn how valuable their retirement benefits are worth. We will work with you to make sure you have not overlooked any property and receive your fair share of the marital estate.
- Alimony and post-separation support — As with equitable distribution claims, alimony claims must be filed prior to entry of the divorce judgment. Otherwise, you waive your right to seek this support in the future.
You Need Your Own Attorney To Protect Your Interests
Many people have the misconception that a separation and property settlement agreement is simply a transactional matter, like a real estate closing, and only one attorney is necessary. While these agreements often involve real estate, trusting that your spouse's attorney drafted a separation agreement and property settlement agreement with your interest in mind is naive. Your spouse's attorney has an ethical duty to look out for his client's interests and not yours.
Before talking to your spouse's attorney, first talk separately to your own attorney, such as one of our experienced family law attorneys. Our lawyers have your goals in mind and are looking out for your best interests. We will act as the dedicated advocate you need who will fight for what is best for you when necessary.
Remember: Do not sign anything until you and your attorney have thoroughly reviewed the document. Some separation agreements are treated as court orders, thus violating the agreement and exposing that party to being held in contempt of court, rather than in breach of contract.
Although there are limited circumstances in which some contracts can be set aside, you should expect that anything you sign will be enforceable against you. Not understanding a term of the contract will not be sufficient enough to have it set aside. If your spouse asks you to sign a separation agreement, schedule a one-hour consultation with one of our attorneys. We will review it with you to make sure your interests are protected.
As soon as you realize your marriage is ending, turn to The Law Offices of Lyndon R. Helton, PLLC. Arrange an initial consultation about your particular situation by calling our Hickory office at 828-848-8776 (toll free at 888-321-0494). Alternately, you can also contact our firm online. $100 for a one hour consultation.