Divorce Differently |
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Do we have to sell the house?
It depends. There is a presumption in both North Carolina and South Carolina that all of the marital assets and debts will be split equitably between spouses, which includes both the equity in the house and the mortgage debt. If one spouse wishes to keep the house, that spouse must figure out how to do two things: First, the spouse keeping the house must remove the other spouse’s name from the mortgage loan (typically either by refinance, payoff, or assumption), and second, the spouse keeping the house must find a way to pay the other spouse their portion of the equity in the home, if any. For example, the spouse keeping the house might provide the other spouse with a greater portion of marital savings accounts or brokerage accounts in an equivalent value to the other spouse’s portion of the equity in the home. Oftentimes, however, the largest asset couples have is their home and there is no other way to provide each spouse with 50% of the equity in the home except to sell the home and divide the equity proceeds resulting from the sale. Do I have to share my retirement/401(k) savings? It depends. If you have retirement savings that you accumulated prior to marriage, those funds would typically be considered “separate property” and not subject to division in divorce. Retirement savings and 401(k) account funds that have accumulated during the course of the marriage are considered “marital property,” and are subject to equitable apportionment between the spouses. If you both have close to an equal amount of retirement savings in each of your individual retirement accounts, you might both keep your individual accounts without splitting them. If one spouse has saved most of the retirement for the couple in his or her individual 401(k) account, then the other spouse is typically entitled to half of the funds. That being said, dividing the marital estate is a creative math problem. If you keep your full 401(k) account in the divorce, is there another way to allocate to your spouse the equivalent of 50% of your 401(k) savings? Could you provide your spouse with a greater portion of the equity in the home? Are there other liquid accounts your spouse could be allocated? This is a situation where you definitely need to consult with a lawyer to figure out the best way to divide your marital retirement accounts fairly without incurring extra fees and expenses. Can I get (or will I have to pay) alimony in North Carolina? Alimony is not automatically awarded in North Carolina. North Carolina has a need-based approach to alimony; one spouse must need alimony to maintain the standard of living they became accustomed to during the course of the marriage and the other spouse must have the ability to pay alimony. The “supporting spouse” would pay alimony to the “dependent spouse” to cover the dependent spouse’s needs that they cannot afford on their own. In North Carolina, if adultery was committed by the dependent spouse (even if the dependent spouse needs alimony), however, this behavior bars the dependent spouse from receiving alimony. If the supporting spouse has committed adultery (and the supporting spouse has the ability to pay), then the dependent spouse will be awarded alimony. Do we really have to live apart for a year before we can get a divorce, or can we just sleep in separate bedrooms?
Yes, in both North Carolina and South Carolina to file for a no-fault divorce you must live separate and apart in separate homes for one year and one day before you can file for divorce. Staying in separate bedrooms under the same roof is not sufficient in either state to qualify as a “separation.” Filing and receiving the divorce decree is the final step in the separation and divorce process, but in the year-long interim period, you can address all of the other issues related to the divorce such as child custody, child support, equitable distribution, and spousal support/alimony. What if my spouse doesn’t want to get divorced? Your spouse cannot deny you a divorce and you do not need your spouse’s “permission” to file for a divorce. If you meet the requirements to file for divorce, you can proceed whether your spouse wants to be divorced or not. An uncooperative spouse does not need to agree to the divorce for it to be granted by a judge; however, your spouse must be served with proper notice that you filed for divorce. After service, if your spouse ignores the lawsuit, your divorce will still typically be granted in the end. Bear in mind that all marital financial issues (i.e., equitable distribution and spousal support/alimony) must be resolved prior to the issuance of a final divorce decree. What if my spouse won’t leave the house to start the separation period? If your spouse refuses to leave the shared marital residence and you want to keep things amicable and low-cost, you may have to be the spouse who initiates the separation by leaving temporarily. There are sometimes other legal avenues to attempt to remove your spouse from the marital residence, but the other legal options can be expensive, time-consuming, and not conducive to reaching a settlement with your spouse in the long term. As a side note: you cannot just change the locks after your spouse leaves for work one day and not permit your spouse to reenter the home unless you have filed for and been granted a domestic violence protective order. Generally, locking your spouse out is not the best way to initiate an amicable divorce. Do we have to go to mediation? No, not necessarily. Oftentimes couples can agree upon how to divide their marital estate, what their parenting time schedule will be, set a child support obligation, and determine spousal support/alimony on their own or with the assistance of attorney(s) prior to proceeding to mediation. If a couple disagrees upon any of the above-mentioned issues and cannot find a resolution, the couple may benefit from participating in mediation to work out the details of their divorce. A mediator is a neutral third party who is usually an attorney or a retired judge. Mediators assist the parties in working through their disagreements and finding a workable and satisfactory overall resolution. Couples can participate in mediation without attorney representation, but in North Carolina, please note that a mediator cannot draft a separation agreement. If you come to an agreement in mediation in North Carolina without attorneys, you will have to take your list of agreed-upon points to a separate attorney to draft the separation agreement. If you are represented by attorneys during the mediation and you are able to resolve your case, you and your spouse would sign a separation agreement drafted by one of your attorneys. In South Carolina, a mediator is permitted to draft a mediated settlement agreement for parties who are not represented by attorneys, which can save a ton of money for spouses who cannot afford two attorneys. How long does a divorce take? In North Carolina: You have to wait for one year and one day after separation to file for divorce. Your spouse has 30 days after service to respond to the divorce lawsuit. If you and your spouse have reached a resolution outside of court, finalizing the divorce will be a matter of getting on the court’s docket to have a judge declare you legally divorced. If your county has a full docket, it can take an additional 3+ months to finalize the divorce after filing. In South Carolina: For a no-fault divorce, if you have been separated for one year and one day and have reached a resolution on all marital issues, finalizing the divorce will be a matter of getting on the court’s docket to have a judge declare you legally divorced. If your county has a full docket, it can take an additional 2+ months to finalize the divorce after filing. If you and your spouse have reached a resolution outside of court, you are filing for a fault-based ground for divorce (adultery, habitual drunkenness or drug use, or physical cruelty), and your spouse does not contest the divorce filing, you may be able to obtain a divorce 90 days after the date of filing. Can we file the divorce paperwork ourselves? Yes, you can file the divorce lawsuit without a lawyer, but divorce paperwork is intensive and has very specific legal requirements. Navigating the divorce process is complex and divorce paperwork is best completed by a licensed attorney who has the expertise to properly handle your divorce. Do I have to go to court? In North Carolina: No, not usually. If you can reach a resolution on all your other marital issues outside of court (i.e., child support, child custody, equitable distribution, and spousal support/alimony), all you have to do is file the divorce lawsuit then proceed accordingly with your county’s respective requirements to finalize your divorce. You do not typically have to be present in court when the judge signs the Judgment of Divorce. In South Carolina: Yes, even if you and your spouse have reached a resolution on all of your other issues outside of court (i.e., child support, child custody, equitable distribution, and spousal support/alimony), you will have to appear at a Final Divorce Hearing in front of a judge to get the Decree of Divorce entered, unless you and your spouse (via your attorneys) submit affidavits to the court in lieu of a hearing. You’re unhappy in your marriage and don’t see a way forward. You haven’t separated but you are considering a separation and potentially a divorce. If you’re confused about what steps you should take, we are here to offer some advice.
MARRIAGE COUNSELING First, if possible, seek out a reputable licensed marriage and family therapist to see if you can improve your marriage. If you and your spouse both desire to improve the state of your marriage, set the intention and try. A marriage therapist can also help you navigate a separation if, after some sessions, a separation is what you and your spouse decide is necessary. Anyone who has been married knows that marriage is not easy. Sometimes thinking about divorce can be the wake-up call that you need to start working toward improving your marriage. It can be helpful to do a quick introductory call with a few marriage and family therapists (if they offer it) to see if you are a good fit before deciding on one together. If your spouse won’t go to marriage therapy with you (or even if you are currently in marriage therapy), make sure you are also seeing an individual therapist to help you cope and work on your own individual issues. CONTEMPLATE WHAT’S BEST FOR YOUR CHILD What parenting schedule might be best for your child if you decide to separate from your spouse? Consider your children’s ages, personalities, extracurricular activities, maturity levels, and medical, developmental, and emotional needs. Consider each parent’s work schedule, lifestyle, and capacity to meet the children’s daily needs. If one parent travels frequently for work, that would factor into the time and days that the traveling parent could assist with school pick-up and drop-off, transport to afterschool activities, homework help, and bedtime. If, after separation, you are going to agree to a parenting time schedule (and not go to court and let the judge decide), the parenting time schedule can look however you want it to and you can decide what schedule ultimately works best for your family. UNDERSTAND YOUR FINANCIAL PICTURE Next, start thinking about the marital assets and debts in your marital estate. Go through statements and make a list or a spreadsheet outlining your house, mortgage(s), retirement and investment accounts, bank accounts, car loans, credit card debt, medical debt, any special or valuable household possessions, as well as any property that might be “separate” from your marital estate (like inheritance funds or items you owned prior to marriage). Look at your overall financial picture and think about how you might move forward if you made the choice to separate. Have you been a stay-at-home parent who relied on your spouse financially? Would you need financial assistance from your spouse in the form of post-separation support or alimony? Would you all be able to pay off shared marital debt if you sell your house and both buy smaller homes? In North Carolina and South Carolina, there is a presumption that all of the assets and debts you accumulated during the marriage will be split 50%/50% between the spouses, although there are statutory factors that can cause the percentages to be apportioned differently by a judge. DETERMINE YOUR LEGAL RIGHTS Consult with a family law attorney or two. Find out your legal rights and the claims you could make if you choose to separate and divorce. Be extremely honest during your consultation so the attorney can give you accurate advice. Has there been adultery on either side of the marriage? Are there substance abuse issues? Are the children struggling with physical or mental health issues? Family law attorneys have seen and heard everything when it comes to these types of personal family issues, so please do not be embarrassed and speak freely knowing you are protected by attorney-client confidentiality. The issues mentioned above can affect your legal situation, so you want to tell the full truth about past or current situations when you consult with an attorney. If you choose to separate, you generally have to live separate and apart continuously for at least one year before actually filing for no-fault divorce (in both North Carolina and South Carolina). You have time and space to figure it out, so you don’t have to rush to make decisions. If your spouse is against separating or moving towards a divorce, you may have to be the one to leave the marital residence, but know that you do not need “permission” from your spouse to take the next steps. Reach out to set up a consultation with an attorney if you are discerning whether a separation and divorce is right for you. We can help. What do you want your child’s divorce story to be? Ending an unhappy union through a divorce can sometimes be the best solution for a family. We know divorce affects children, but it does not have to traumatize children or be nasty and contentious. It can be a relief for your children to see both of their parents happier and better-adjusted post-divorce. Your child can have the opportunity to develop a stronger relationship with both parents and their siblings because of divorce. Your divorce approach can impact a generation. What will your child’s lifelong memories be after your divorce? Will your child remember the joy of seeing both of their parents sitting in the same row at their school play? Or will they remember the tension between you and your co-parent as you sat on opposite sides of the theatre and agonizing over which parent to run to first after their play? Will your child remember stressful custody exchanges or special times at both parents’ homes? Keep this in the forefront of your mind as you proceed through your separation and divorce.
A parent is never perfect, but you are the perfect parent for your child. Divorce is a huge transition in a child’s life and there are steps you can take to help your child’s divorce story be a positive one. LOVE YOUR KIDS Love them. That’s simplistic, but it’s truly the best thing you can do. Be present with your child as they experience this major life change. Listen actively if they want to talk; be with them quietly if they don’t. Hug them, check in with them often, and remind them that you love them and will be there if they ever want to talk. Be open to their questions and answer them honestly at an age-appropriate level. Keep in mind as you answer that you protect them from the legal side of the divorce, even if they are older. Explain the new logistics of at whose house they will sleep and when, and who will pick them up from school, but shield them from the intricate details of child custody, child support, alimony, and anything regarding the marital estate. TREAT YOUR CO-PARENT RESPECTFULLY Make your child’s well-being your priority by treating your co-parent with respect and civility. Think of how your child will be affected by your words, thoughts, and actions around the divorce and toward your co-parent. Treat your co-parent with respect for no other reason except that your co-parent is an extension of your child. Be aware of how you speak about your co-parent around your child and only speak positively about your child’s time with your co-parent. Kids will often say they don’t want to go to the other parent’s home, but there can be many reasons for this. Don’t jump to conclusions. Sometimes a child’s hesitance to leave you is just a sign that the child has a healthy attachment to you, like when a child cries at daycare drop-off (and recovers within a minute of you walking out the door). DO NOT RELY ON YOUR CHILDREN FOR EMOTIONAL SUPPORT It is okay to be transparent about your own feelings and emotions throughout the divorce process, but do not rely on your children to support you emotionally. Children should not be the ones comforting you about your adult problems. They should not be taking on your emotional load while trying to manage their own. Find a qualified therapist or talk to family or friends for support. By following this advice, you will let your children maintain their childhood through a divorce and preserve pleasant childhood memories with both of their parents. The divorce story your child will tell in adulthood will be one where their parents were brave enough to make the right decision to move on so they could be better people and better parents post-divorce. You can contact us if you are ready to take that next brave step. |
AuthorLindsey Dasher is the Managing Partner at Dasher Law PLLC Archives
May 2024
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