Getting Divorced in North Carolina – Pros and Cons

Allen & Spence - FAQGetting divorced has it’s obvious impact: you are no longer married.  Once divorced you may marry someone else.

However, getting divorced has other consequences.  Let’s review them:

  1. Once divorced you may no longer file married joint or separate tax returns.  This may cost you and your ex-spouse money.
  2. Once divorced you may no longer be covered on your spouses health insurance (and you may no longer carry your spouse on your insurance once the divorce is final).
  3. If claims have not been made for alimony, postseparation support and equitable distribution prior to the entry of the divorce judgment, THEY ARE LOST FOREVER.

 

 

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Scott Allen is a divorce attorney in Raleigh, NC with over nineteen years of experience in all areas of family law litigation and settlement.  He can be reached at 919.863.4183.

Mediations and Mediators

I frequently get asked about mediation.  What is it?  What does it cost? How can I get my spouse to mediate? What happens in a mediation? Let’s explore these issues in the context of a North Carolina divorce case.

What is Mediation?

Mediation is a dispute settlement process wherein a neutral person (the mediator) seeks to find areas of compromise between the sides in a case on the issues brought to mediation.  For example, in a child custody case where the parents can’t agree on how to share custody, the mediator tries to get the parties to recognize the benefits of settlement, the risks of letting a judge make a decision, and explore the areas of common ground.   A mediator is not a judge and will not make a decision; the mediator works as a facilitator.  Unlike a court case, which is public record, the mediation process is confidential.

What does Mediation Cost?

In Wake County, a private mediator for a family law case will be in the range of $225 per hour (sometimes more, sometimes a little less).  A successful mediation can occur in anything from a couple of hours to all day.  It depends on the complexity of the issues and the positions of the parties. A successful mediation is almost always less costly than litigation.  Furthermore, the cost of the private mediator is usually split equally between the husband and wife.

How Can I get My Spouse to Mediate?

If you have an attorney, talk to him or her about mediation and have them make a proposal to mediate the case.   Usually all you have to do is ask.  Plant the seed that you want to resolve your differences amicably and without the cost and stress of litigation.

What Happens in a Mediation?

They usually go something like this:

  • You arrive at the mediator’s office and meet your lawyer there.
  • You might arrive a little early to review last-minute matters (you and your lawyer should have mostly prepared prior to the mediation).
  • The mediator will do an introductory session, explain what will happen, and have you sign the mediation contract if you have not already.
  • The process will begin with the mediator talking to each side and understanding what the issues are.
  • Once the mediator gets an idea of the issues, he or she will start carrying proposals back and forth.  The goal is to narrow issues and get to compromise.
  • A good mediator will explore options and avenues for compromise.
  • A good mediator listens to understand what the issues are and makes each side feel like they are being heard.
  • These efforts will continue as long as progress is being made.
  • If successful, the parties will sign an agreement at the conclusion of the mediation.

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Scott Allen is a trained mediator and divorce attorney in Raleigh, NC with over nineteen years of experience in all areas of family law litigation and settlement.  He can be reached at 919.863.4183.

Legal Checkup – Life After Your Divorce

divorce checklistYour divorce is behind you.   The schedule with the children is working out. You are in a new home, moving on, day-by-day.  Nothing else to worry about, right? Smooth sailing?

Unfortunately, no. There are some other things for you to think about as you move forward.

Here’s a checklist:

  • update your will and estate planning documents
  • double check the beneficiaries on accounts
  • mark important dates on a calendar (for example, if you have to work out a summer schedule by mid-April, put it on a calendar)
  • make sure all joint accounts with your ex-spouse have been closed
  • run a credit report to make sure there are no joint debts or debts in your name that you were not aware of
  • keep proof of any child support or spousal support you pay or receive
  • keep records of expenses that your ex-spouse has an obligation to reimburse you for (like part of the uncovered health care expenses for the children)… and timely submit those receipts.
  • keep your important legal documents in a safe place where you can access them

 

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Scott Allen is a divorce attorney in Raleigh, NC with over nineteen years of experience in all areas of family law litigation and settlement.  He can be reached at 919.863.4183.

Divorce and Property: What do we do with the House?

the marital residenceThe marital residence is frequently the largest (no pun intended) marital asset.  The marital home presents various issues: (1) what happens to the equity? (2) who gets it? (3) what if the mortgage is in both names?

While this article can’t answer all possible issues that would arise about the marital residence in a separation, let’s touch briefly on the issues outlined above.

Your Home’s Equity?

When you talk to a divorce lawyer and he or she asks you about your home’s equity, they are generally looking for a number that is the difference between the market value of the house and what you owe on it.  For example, let’s say you think your house would sell for $200,000 and you and your spouse owe $75,000 on the mortgage.   The equity would be $125,000.    Note that this number is before any costs of sale like realtor’s commissions.

Who Get’s the Home?

In general there are three options: (in no particular order)  the husband gets it, the wife gets it, or it’s sold and the proceeds of sale are divided in some way.

Which option is best for you will depend on circumstances of your case.  For example, if a parent needs to be in the house for the stability of the children, that might be important to the court.    It is also important to know if there are enough other assets to get an even distribution if one spouse keeps the house (and its equity).

What about the Mortgage?

This is an important question.   If a mortgage is in joint names, judges will want to see the spouse who is being awarded the house take actions to refinance the mortgage so that the credit of the other spouse is not tied up in the house debt.

Tied up with the ability to pay the mortgage are all the cash flow issues such as alimony, postseparation support, and child support.   All of these possible claims must be examined in the context of the home and its mortgage.

Do you have questions? Scott Allen is a divorce attorney in Raleigh, NC with over nineteen years of experience in all areas of family law litigation and settlement.  He can be reached at 919.863.4183.

Winning Your Case at Trial or Mediation

PlanWhether you are litigating or trying to settle issues of child custody, equitable distribution, alimony, or child support, putting your best case on is important.  The issues at stake are about your children and financial security and you do not want to have any regrets.

Below are suggestions to help you do as well as possible whether you are litigating your case or trying to settle it.

  1. Make Sure Your Attorney Knows All the Facts:  Never leave out critical facts because you believe they are embarrassing to tell your attorney.  Remember, the other side may bring these up and you do not want your lawyer to be surprised or unprepared because you did not warn him in advance.   Tell your lawyer everything.
  2. Take Care of Your Responsibilities While the Case is Pending: Courts do not react well to destructive actions aimed at hurting your spouse. Withholding support, allowing the utilities to be cut off, not paying the mortgage… these are all destructive acts that courts do not like.
  3. Control Your Online Presence: Do not post negative, vicious, threatening, or other comments about your spouse, your divorce, or the process.   Do not post anything that you would not be okay with the judge reading.  be very careful in posting photographs of your children online.   In the past I have suggested not to post children’s photos at all, but if you carefully monitor the content and your privacy settings, judges are not inherently against the idea since many people use this as a way to share photos with family.    You should assume that anything you post online may be brought up in court.   The safest approach is simply to stop using social media until your case is settled or a judge makes a decision.
  4. Timely Comply With Court Rules and Discovery Requests:  Wake County has extensive local rules that require documents and information to be turned over.  Also, nearly every case will have discovery requests from both side where documents, photographs, diaries, calendar, and journals are requested.  You are required to comply with the local rules in your jurisdiction and legitimate discovery requests..   Be careful, because if you do not timely provide the documents and information requested you will likely be sanctioned by the court. Sanctions can consist of attorney fee awards, contempt of court, and/or the court preventing you from putting on evidence.
  5. Email, Texts, and Phone Records:  In most cases where there are allegations of wrongdoing there will  be requests for email, text messages and phone records. The attorney may also request to make a duplicate image of your computer hard drive to obtain all of the files and data on it. When faced with this prospect many people attempt to get rid of the contents of their computer. Destruction of potential evidence is a bad idea.
  6. Depositions:  In many cases each party’s deposition will be taken.   A deposition is a proceeding that takes place in one of the attorney’s offices where your sworn testimony is taken.   Depositions are important.  Your deposition may be used at trial to raise questions of your credibility if you testify differently at trial than you did in deposition.   You should prepare carefully for your deposition with your attorney.
  7. Dress appropriately for court and mediations: This means a suit and tie for men and a conservative suit, dress or skirt and blouse for women.
  8. Follow the Rules of Decorum:   Turn your phone off.  Don’t wear a baseball cap.  Do no chew gum. Be respectful to the judge, the clerks of court, opposing counsel, and your spouse. Everything you do in the courtroom is visible to the judge, and judges watch behavior carefully.

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Scott Allen is a divorce attorney in Raleigh, NC with over nineteen years of experience in all areas of family law litigation and settlement. He can be reached at 919.863.4183.