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Overview of NC Divorce

Scott Allen on NC DivorceThe divorce process can be overwhelming.  There are five basic issues that usually need to reviewed when talking about divorce and separation: equitable distribution, alimony and postseparation support, child custody, and child support.

I hope you find this video helpful,  I put it together as a response to some questions I had been getting emails about and provides a basic overview of North Carolina divorce issues.

 

 

Divorce in NC Overview from Scott Allen on Vimeo.

 

 

Filed Under: Divorce

Can You Handle Your Own North Carolina Divorce?

Allen & Spence - FAQI frequently get asked by clients, potential clients, and people just looking for North Carolina divorce information,  whether they can handle their own divorce.  The legal answer is always yes you can… any person can represent their own interest in court without a lawyer.  All the way from small claims cases to death penalty defense, you can be your own lawyer.

Everyone has the right to stand up in their own case and be his or her own lawyer.  In legal lingo someone who represents him or herself in court is pro se, meaning he or she is “for one’s own behalf.”  What it really means in family court in North Carolina is that you are going it alone and you will be expected to follow the same rules, procedures, and laws that attorneys know to follow.

The real question, and the important question, is whether it is a good idea to handle your own divorce?  No, it is not.

In the usual family law case in North Carolina there are about five separate sub-parts in a normal divorce case: divorce, child custody, child support, spousal support, and equitable distribution.  Each of these is, in reality, a separate legal case.  For example, spouses can be divorced after one year of separation, but the decree of divorce will not resolve equitable distribution, child support, child custody, etc.

A decree of divorce is only a document that ends the marriage.  Other matters are usually settled by a separation agreement when parties can agree and by the district court judge when parties can not agree.  There are often tax and real property issues that need to be addressed and evaluated.  A mistake can be very costly.

In addition to the complex legal issues and the pro se party’s lack of training and knowledge in rules, procedure, and the law, it is extra-ordinarily  difficult for a pro se person to be objective.   Objective and reasoned guidance is one of the most under-appreciated benefits of having a lawyer.  It is hard to make good decisions when you are in the center of a storm.

If you decide to represent yourself to save money you must evaluate the cost of not having an attorney. Before you decide to  represent yourself, consult with an attorney and make informed decisions about the risks.

 

 

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No Fault Divorce in North Carolina

NC DivorceNorth Carolina is a “no-fault” absolute divorce state.    What does “no-fault” mean?  It means that to obtain an absolute divorce a spouse need not show that he or she was wronged by the other spouse.  Prior to revisions to the law, divorces were only granted to a spouse who proved that he or she was wronged in some way.  For example, a spouse would have to prove fault grounds like adultery, indignities, and other bad behavior.  This is no longer required for an absolute divorce.

To obtain a divorce in North Carolina there are only a few basic requirements.

First, the party seeking the divorce must be a resident of North Carolina for at least six months prior to filing for the divorce.  To be a resident you must live in North Carolina with an intent to remain in the state.

Second, the spouses must be separated for at least one year.  Being separated means being out from under the same roof and one of you has the intent to be separated.    The year of separation is not stopped if, for example, the spouses do things together or even occasionally have sexual relations, however, such conduct can complicate the issue of the separation.

Absolute divorce must be distinguished from divorce from bed and board.   An absolute divorce means the marriage is dissolved and over.  It is final.

A divorce from bed and board, on the other hand, is a decree of  the court based on fault grounds that the parties are legally separated and cuts off certain rights of the spouses.   These kinds of divorces are relatively unusual.

 

 

Filed Under: Divorce

The Case for Calm: The Stress of Divorce

Divorce is stressful.  I know this and I have witnessed the impact of divorce and separation.  I have seen hundreds of clients over the years and one thing is clear: everyone responds to  divorce differently.

How you respond is important, and I’ll get to that later on, but let me start by outlining some of the symptoms of stress that I have seen:

  1. Inability to focus.
  2. Sleep problems.
  3. Anxiety.
  4. Anger.
  5. Depression.
  6. Not eating.
  7. Overeating.
  8. Substance abuse.

Anxiety,  anger, and depression are, by far, the biggest symptoms I see in my practice.  From many conversations with other divorce lawyers, I know we all see the same thing.   These signs of stress are a daily part of my practice.   They are usual and to be expected as part of any divorce.

I know that life is stressful enough already.  When you add the divorce process on top of job issues and other family issues, it is easy to become overwhelmed.  However, it is important that stress be addressed before the symptoms have an impact on your case.

Symptoms of stress can impact a divorce case in many ways.  Here is a short list:

  1. Inability to follow through with necessary documents and preparation.  A client that can’t focus can help in his or her own case.
  2. Inability to appropriately communicate with the other party.  This is a big problem in custody cases.  A client who is stressed out and angry will often take the anger out on his or her spouse.

How to deal with this stress?  There are many ways.

  1. Counseling.  In counseling the professional will suggest many ways to deal with stress.  For example, the counselor may help the patient put the divorce in perspective or frame the problem in a way that helps the spouse deal with it in a more productive way.  A qualified counselor may also give advice about avoiding stressful situations and recognizing other ways to deal with the stress of divorce.
  2. Physical exercise.  I know that this can help the mind and body deal with stress.
  3. Self-help.  There are books on how to deal with stress, web sites, and other resources.  Use them.
I don’t think there is any way to eliminate stress from a divorce.  However, picking the right lawyer can make the process less stressful than it might otherwise be.  Interview several lawyers.  Listen to the legal advice and get a sense of how you think you will get along with each.

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Raleigh divorce lawyer Scott Allen handles alimony, child support, equitable distribution, modification of custody, child custody, and temporary custody hearings and has over seventeen years of experience.  

If you have questions or need assistance call him at (919) 863-4183 or email at sallen@allenspence.com.  

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Divorce from Bed and Board

With decreasing frequency in my practice over the past seventeen years I get asked about divorce from bed and board.

“Divorce from bed and board” under North Carolina law is a judicial separation.  In other words, it is a separation authorized by the court. This action suspends cohabitation, but does not dissolve the marital relationship like an absolute divorce.

A claim for divorce from bed and board must be based on certain statutory marital fault grounds that include adultery, abandonment, and other bad marital conduct.  A spouse defending this claim may defend by denying the grounds or by raising certain legal affirmative defenses such as condonation (forgiveness) and recrimination (the complaining spouse committed fault to and is therefore not entitled to the divorce from bed and board).

So what does a divorce from bed and board accomplish?  Most of the time these actions are filed to get one spouse out of the house and to cut off certain rights as set out in G.S. 31A-1(b).

So why did I start off this article by talking about the decreasing frequency of these claims? Because I have noticed fewer after the 1995 amendments to the alimony laws in North Carolina.  Prior to 1995, fault played a much greater role in the entitlement of alimony than it did after the changes in the law.

That is not to say there is no basis to file for divorce from bed and board.  there could be good reasons to do so in certain cases.  When the spouses just can’t get to a separation it is really the only claim that makes sense to file to attempt to cause a separation.  I have seen a few cases where a court heard child custody prior to the parties’ separation and granted custody an possession of the house to one parent; however, I have also seen some judges refuse to deal with custody until the separation occurs.

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Family law attorney Scott Allen has litigated divorce from bed and board cases and has over seventeen years of experience.  If you have questions or need assistance call him at (919) 863-4183 or email at sallen@allenspence.com.

 

 

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What is required for a divorce in NC? The basics.

NC DivorceAn absolute divorce changes the status of a married couple to being unmarried.  An absolute divorce in North Carolina ends the marriage.

The absolute divorce does not resolve property, alimony, child custody, child support, or other issues.  If you decide to file your own divorce be aware that you can lose certain important legal rights to pursue alimony, postseparation support, and distribution of property.  You should talk to an attorney prior to filing for divorce.

The legal requirements for an absolute divorce in North Carolina that must be set out in the complaint are:

  1. That the plaintiff or defendant has been a resident of North Carolina for at least six months prior to the filing of the complaint.
  2. That the parties have lived separate and apart for one year with a specific date of separation set out.
  3. Set out the names and ages of any minor children of the marriage or the fact that there are no children of the marriage.
  4. The statute requires the names and ages of any children of a party seeking divorce so that the court may protect the interests of such children if the parties have failed to do so.
  5. The complaint for divorce must be verified. (Signed before a notary public with the proper  statement that the plaintiff swears the content of the complaint is true.
  6. The complaint must say the plaintiff and defendant are married.
  7. It must say that that at least one of the parties intended the separation to be permanent.

 

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Raleigh  lawyer Scott Allen handles contested divorce and has over seventeen years of experience.  

If you have questions or need assistance call him at (919) 863-4183 or email at sallen@allenspence.com.  

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