What is a Fair Settlement in My Divorce Case?

Allen & Spence“Fair” is a difficult word in family law cases.   There is little fair about the loss of a marriage and family.  Therefore, “fair” is a word I try to avoid.

Instead of the word “fair” I usually focus on the word “reasonable.” “Reasonable” invites a more objective and less subjective focus.

So with those semantics out of the way, when you are discussing settlement how do you know what a reasonable settlement is?  That’s a question I get asked all the time.  It usually is formed around questions from my clients such as “is this a good deal” and “how should regarding respond” and so on.

So what is a reasonable settlement?  In almost every situation the standard of reasonability of a settlement option is what  judge would do after hearing the facts of your case.   If you accept more if you’re able to negotiate more than a judge would likely award to you then you have a very good deal. If you accept less than a judge would likely award you then your deal is not so good.

That always invites the question: “Thanks for that Scott, but how am I to know what a judge is likely to do?   The answer to that is where the problem arises.  In Wake County, like most North Carolina  judicial districts, there is more than one judge getting sitting for domestic law cases. Every judge is different and in North Carolina family law cases the district court judge is generally granted very broad discretion in interpreting the evidence and applying the evidence to the law.

Therefore, it is not easy to predict what a judge will do.   It is certainly not possible for an attorney to promise you that he or she knows what a judge would do.

What you have to do is rely on your attorney to guide you. Your attorney’s experience and knowledge in handling cases cases in front of the judges where your case is to be held are the important issues.  With that knowledge gained from experience, your attorney will be able to suggest likely outcomes so you can then decide if the settlement is reasonable.

_______________________
Scott Allen is a divorce attorney in Raleigh, NC with over twenty years of experience in all areas of family law litigation and settlement. He can be reached at 919.863.4183 and his email is sallen@allenspence.com

What is in a Separation Agreement?

What does a separation agreement cover?  Typically the agreement covers four main issues and then addresses a series of waivers.

The four substantive issues that most agreement address are:

  • child custody – joint and legal custody and schedules
  • child support – amount, payment dues dates, health insurance
  • alimony/spousal support – amount and termination provisions
  • property and equitable distribution – assets, debts, and distribution

The waivers in a typical separation agreement are:

  • waiver of estate rights and claims
  • releases of other claims between the parties (and sometimes third parties)
  • often there is a waiver of further financial disclosures

An important aspect of a valid separation agreement is that it be signed by both parties in front of a notary public.

Those are the basics.  Separation agreements can be very complicated.   Resist the urge to draft your own agreement… it is easy to make mistakes and create legal issues that may be very costly and sometimes impossible to fix later on.

 

 

_______________

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.

_______

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.

The Separation Agreement

 

 

Scott Allen discusses separation agreements

When I get asked about a legal separation in North Carolina, I usually answer by explaining a bit about separation agreements.  A separation agreement is a contract that can resolve issues between the parties like equitable distribution, alimony, postseparation support, child custody, and child support.

This video explains some of the law surrounding these kinds of agreements.

 

 

 

 

Outline:

What is a Separation Agreement?
•Contract in writing
•Signed by husband and wife
•Requires a notary or official certification
•Must comply with requirements of NCGS 52-10
•Must be executed without fraud, duress, or undue influence
What can be included in a separation agreement?
•Agreements on
•Property distribution – assets and debts
•Alimony – amount, duration and termination
•Child Custody – physical and legal custody
•Child Support – amount, duration, and termination
•Can also include
•Estate and inheritance rights
•Rights to pursue other litigation such as alienation of affections and criminal conversation
•Can’t agree to get a divorce
What regarding the differnces between a separation agreement and a court order?
•Separation Agreement
•Contract
•Enforcement – contract remedies
•Modification – requires mutual agreement
•Court order
•Judicial decree
•Enforceable by contempt powers of court and ay be modified by the court in some situations
Getting a separation agreement.
•Negotiation process
•Classic model
•Mediation
•Collaborative law
•Traps
•Full disclosure
•Tax consequences
•Legal issues
Modifying a separation agreement.
•Mutual agreement required
•New document with same formality as original agreement
•Special issues of child support and child custody

Introduction to Separation Agreements

NC Separation AgreementWhat is a separation agreement and what makes an agreement into a separation agreement?  How is it different from a court order?  What is a legal separation?

The relevant North Carolina statutes are located at G.S. § 52-10.1.

While G.S. § 52-10 allows spouses to contract about property rights at any time during marriage (see our article on postnuptial and postmarital agreements). § 52-10.1 authorizes spouses to enter into separation agreements not inconsistent with public policy, provided that the agreement is in writing and acknowledged by both parties in front of a certifying officer.

Quite simply, a legal separation agreement is a contract between spouses that provides for the resolution and settlement of issues arising out of the marriage.  A separation agreement, to be valid, must be executed while the parties are separated or planning to immediately separate.

Separation agreements are not court orders.  This an important point for many reasons, but since they arise by negotiations between spouses and not as a result of court litigation, they generally are not enforceable by the contempt powers of the court in the way a normal court order would be.

Also, unlike court orders… which under some circumstances may be modifiable… a separation agreement must be modified in writing and with consent of both parties.  Separation agreements are favored in North Carolina because they allow spouses to reach mutually acceptable settlement of their financial affairs.

A legal separation in North Carolina has no statutory definition, but is generally means a separation that occurs with a separation agreement or with the entry of a divorce from bed and board.

Like premarital agreements, a legal separation agreement may be attacked.  The basic ways to attack a separation agreement is to argue such legal theories as duress, and fraud.  However, it is generally difficult to get a separation agreement invalidated under North Carolina law.

Family law attorney Scott Allen negotiates and litigates issues in separation agreements 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.