Smarty Tips for Divorce Part 1: Divorce Primer
CSP Team Note: This is the first in a three-part series written by Rebecca Wofford, a family law attorney and partner at Wofford Law, PLCC to help our readers navigate the divorce process. Rebecca is also founder of The Lunch Project – see her most recent Smarty Mom profile here and her first profile here – she was also 2014 Smarty Mom of the Year!). Nobody wants to go through this, but when this is the best option for you, we’re hoping this series of blog posts will be helpful to you.
When a marriage breaks down, what do you do? This is something we have trouble talking about in our polite society. Even when surrounded by a group of mom friends — our tribe who normally lets their hair down and shares the “real” stuff — the mention of divorce can quiet the room and cause our most down-to-earth friends to look around the room nervously and then change the subject. Yet, we all have friends who have gone through this process. One-on-one, we have held their hands, looked them in the eye and told them it will be o.k. when we have no idea if this is true and then we worry and hope that it will all work out. Or, that they will stop talking about their divorce simply because we don’t know what to say. So, our friends going through divorce are left to consult with other people who have gone through the process and, unfortunately, they hear a lot of horror stories about how awful the legal system treats people, how attorneys don’t really care about what is going on in their lives and how life will never be the same now that they are going through divorce.
Here’s the thing — life will change, and divorce is hard, but it does not mean that change cannot be a blessing if this change is meant to be. It is time we start talking about the things we fear the most and resolve to become educated so we can make the best decisions we can for our families. It is also time we understand the hard stuff so we can support our mom friends going through divorce. This is why I decided to write about this. There is a lot of misinformation about divorce and, although it is one of the hardest things people go through, it can have a positive outcome. You and your ex-spouse can continue to co-parent successfully although you now have a legal document that says you are no longer wife and husband.
This three-part series will begin with the nuts and bolts, then focus on collaborative law, which is an out-of-court settlement process for your divorce, as a healthy alternative to going to court and finally, the aftermath – co-parenting after divorce.
So, let’s talk about getting divorced – the smarty way. Are you ready?
The first thing is to understand the terminology. In North Carolina, there are five possible components of divorce – equitable distribution, child custody, child support, spousal support and divorce.
Equitable distribution is the fair division of marital property. Our law recognizes that marriage is a partnership to which both spouses – whether they work outside the home or not – make valuable contributions, often in different ways. So, property and debt that was acquired during the marriage is presumed to be marital property. That means bank accounts, 401K accounts, real estate, student loans (acquired during the marriage), etc. are not “his” or “hers” but belong to both of you and should be divided fairly. So, the name on the title is not what matters; rather when was it purchased? If it was between the date of marriage and the date of separation, then it is presumed to belong to both of you.
Child custody is based on the “best interests” of the child. Legal custody is the ability to make decisions on behalf of the child and physical custody is where the child is staying, and is often referred to as parenting time or visitation. Our judges, in most cases, will want parents to be involved in their child’s life and it is generally believed that this is in the best interests of the child. When settling custody, parents can decide to become joint legal decision-makers and share physical custody within a framework that works best for their family.
Child support is financial support for the benefit of the child. It is mostly based on the income of the parents. For parents who earn up to a certain level, child support is calculated pursuant to the North Carolina Child Support Guidelines. In high income cases, child support is determined by dividing the children’s actual expenses between the parents according to their respective incomes.
Spousal Support includes both post-separation support – or temporary financial support for the time between separation and when alimony begins – and alimony, which is support that lasts until an event occurs – death of a spouse, remarriage, or a specific date determined by the court or the parties in settlement. Factors considered include the respective incomes and earning capacities, the standard of living during the marriage and any marital misconduct. Our law recognizes that a supporting spouse should continue to financially assist a dependent spouse meet his or her needs and expenses for some period of time following separation and divorce.
Absolute Divorce. Although the term “divorce” is generally used to mean all of the above, it is really the least complicated and occurs without much fanfare. An “absolute divorce” is simply an order from a court stating that you and your spouse are no longer married. Your attorney will need to file legal documents with the Court to attest to the fact that that you have been separated for one year and that you have resided in the county where you are filing for divorce for a least six months.
Here are some short, down and dirty answers to questions we are frequently asked:
Can one spouse stop the other spouse from getting a divorce? No. If only one spouse wants a divorce and the other spouse wants the marriage to continue, divorce can and will still happen. You have to be separated for a year prior to filing but your spouse cannot prevent you from seeking a divorce.
Do I need a separation agreement to separate? No. North Carolina does not require a legal document in order for you to be separated. North Carolina requires physical separation, so you should not stay overnight under the same roof during the year of separation. A separation agreement is a contract by which the parties may settle some or all of the issues outlined above, other than divorce. We usually recommend that our clients settle equitable distribution and spousal support issues by separation agreement, and that issues involving children, such as custody and child support, be resolved through a court order. There are some instances where we would advise you to have an agreement in place before you separate, so you may want to consult with an attorney before you separate if possible.
Does it take a year to receive money or property? Generally no. You may settle or seek a determination of support and property distribution during the pendency of the one-year separation. The court process does require patience, so although you may file for these claims quickly, they will not be heard immediately.
Do I have to go to court? Not necessarily. Many of our clients never see the inside of a courtroom because they have settled all of their issues outside of court and we have filed their consent order for custody, if needed, and their divorce documents on their behalf.
Is the divorce process a little less daunting now? We recommend, as a first step, that you consult with a licensed attorney who practices family law in the area where you live. For more information about the writer and her family law practice, visit www.woffordfamilylaw.com.
The next blog post in this series will focus on why collaborative law is a good choice for parents going through divorce.