Other Things to Consider Before Seeking Divorce Representation
There are a number of issues that may arise during the termination of a marriage that greatly increase the complexity and expense of divorce proceedings. If your spouse is contesting your divorce, or if any of the following are at issue in your divorce, you will need to consult with an attorney who specializes in these particular areas. If you do not anticipate any of these issues, Everett Law Firm, P.A., would be glad to represent you in your uncontested divorce.
A separation agreement is essentially a contract between a husband and wife that generally resolves all issues relating to child custody, child support, division of property, and alimony. It must be in writing, signed by both parties, and properly acknowledged. Executing a separation agreement is much less expensive than litigation, it allows freedom to negotiate each issue to find amicable solutions, and the agreement can remain private, unlike a court document. These agreements should be drafted by a lawyer.
Post-separation support is meant to enable a dependent spouse to meet his or her reasonable needs. An action for post-separation support must be filed, and a judge must make findings before awarding the support. The dependant spouse must allege that he or she does not have the financial resources to meet his or her reasonable needs and that the supporting spouse has the ability to pay. Post-separation support will last until the earlier of: the date specified in the order; an order awarding or denying alimony; dismissal of an alimony claim; entry of divorce if no alimony claim; or termination for remarriage, cohabitation, or death.
Alimony is an award of support that the court may order one spouse to pay to the other following a divorce. The purpose of an alimony award is to address any shortfall that may exist between expenses and income of a dependent spouse, to the extent the supporting spouse has the ability to address it. Alimony may be awarded for a specified period of time, or it may be indefinite absent an event cutting off the dependent spouse’s rights, such as remarriage. The court will make specific findings of fact with regard to the couple’s standard of living during the marriage, as well as the relative ability of the spouses to maintain that standard of living separately following the divorce. Considerations for the support award may include the supporting spouse’s ability to pay, including his or her employment and assets; the dependent spouse’s earning capacity; contributions by the dependent spouse to the supporting spouse’s education, training, and career during the marriage; the age and health of the parties; and the duration of the marriage, among many other factors. Unlike in the divorce itself, issues of fault may be introduced in an action for alimony as a factor for the court to consider. An action for alimony must be instituted prior to a final entry of divorce. *Failure to initiate an alimony claim prior to the divorce judgment will bar your right to assert such a claim at a later time.*
Equitable Distribution (Division of Assets)
North Carolina is an equitable distribution state, meaning that each party retains separate property brought into the marriage, and property acquired during the marriage as marital property will be equitably divided by a court. Parties may be required to submit to a mediated settlement conference so they have the opportunity to work out the division of assets themselves, without necessitating the court’s intervention. If the mediated settlement does not take place or is unsuccessful, a judge will make the final determination of how to divide the assets, taking into consideration a number of relevant factors. An action for equitable distribution (E.D.) of the marital assets must be instituted prior to a final entry of divorce. *Failure to initiate an E.D. claim prior to the divorce judgment will bar your right to assert such a claim at a later time, except in limited circumstances.*
The basic custody arrangements are joint (shared) custody, sole custody, joint physical and sole legal custody, and sole physical and joint legal custody. Legal custody refers to the parent’s ability to make major decisions in the child’s life. Child custody does not have to be determined in a court battle. More often than not, divorced or divorcing parents are able to come to a voluntary, mutual agreement with regard to custody of their children. Child custody arrangements are often included as part of the parties’ separation agreement. If parents are unable to come to a mutual agreement, and one or both parents choose to seek a custody order in court, the judge may first order a mandatory mediation session. If the mediation is unsuccessful or the requirement is waived, then the judge will make the custody decision based on the best interests of the child, taking all relevant factors into consideration. If you anticipate a custody dispute, you should consult an attorney to assess your situation and advise you of your rights.
Like child custody, the amount and frequency of child support payments from a non-custodial parent to a custodial parent can be determined by mutual agreement of the parents. Child support is generally calculated according to the North Carolina child support guidelines (see “Additional Resources” below) and is often memorialized in the separation agreement. If parents are unable to come to terms regarding support, then one or both parties may request a hearing in district court so that a judge can make the award. Such an action must be brought in either the county where the parent or child resides or in the county where the child is physically present. A judge will determine the amount of child support based on the child support guidelines and the reasonable needs of the child. Once a child support award has been set, it can only be modified based on a substantial change in circumstances, so it is important that a parent have his or her interests adequately represented by an attorney at the initial hearing.