Divorce is a complex legal matter, often complicated by high emotions and life-changing issues like child custody, alimony, and child support. It can be particularly challenging dividing up debts, a family business and retirement benefits. Our experienced divorce attorneys can help keep your costs and stress levels low, as we work to resolve your case quickly.
Wake County Family Law: Types of Divorce in North Carolina
The first step is to determine where you are in the divorce process and what steps you need to take.
Separation in North Carolina
Since North Carolina is a “no-fault” divorce state, your spouse cannot stop you from obtaining a divorce so long as one of you has been a resident of North Carolina and so long as you have remained continuously living separate and apart for one year. Some people mistakenly believe that all property and debt issues must be resolved before their divorce can be finalized. While certain claims (such as alimony and equitable distribution) must be filed before your divorce can be finalized, the divorce can proceed while these claims are pending.
Also, while it is not necessary to have a Separation Agreement and Property Settlement before you get divorced, we highly recommend that separated parties consult divorce attorneys to negotiate and sign a Separation Agreement and Property Settlement before the divorce is finalized. This ensures that when the time for the final divorce comes, the judge can easily see you and your spouse have been living separate and apart for at least a year and that you have resolved all marital issues. A Separation Agreement and Property Settlement can also replace months and months of painful and stressful litigation.
After living separate and apart for one year, you will generally meet the requirements to obtain a divorce in the State of North Carolina. However, during that one year separation period, our attorneys can work with you to ensure that the issues of equitable distribution of property and debts, alimony, child support, and child custody are all taken care of. Then, when you file for your actual divorce, everything will be in place and your divorce will be much simpler and less costly.
Some couples benefit greatly from mediation in attempting to settle their marital disputes. The “ugly and stressful” parts of the divorce process are often during litigation. Mediation often provides a gentler alternative to the long delays, high cost, and emotional strain of litigation. Many divorcing spouses find that litigation costs are completely impractical, particularly if the distribution of assets does not include many high-value items or complex items; the price of expert fees, legal fees and court fees may even exceed the value of the assets a client will receive through the litigation process.
Mediation allows you and your spouse to work together and agree on mutually fair and equitable division of assets, child support, alimony, child custody, and many other commonly contested issues. Rather than leaving the division of assets in control of the judge, mediation keeps the control of the ultimate outcome in the hands of you and your divorcing spouse. Also, mediation allows you and your spouse to craft a settlement that is structured differently than that which would be required by a judge. This often helps ease the pain and stress of separation and divorce.
Divorce from Bed and Board
Since North Carolina is a “no-fault” divorce state, couples must be separated a full year before filing for an absolute divorce. However, a “Divorce from Bed and Board” may be available under certain circumstances, such as:
- Endangering the life of your spouse
- Intolerable abuse of drugs or alcohol
- Malicious forced removal
- Physical, sexual, or emotional abuse
- Spousal abandonment
Whether to proceed with a Divorce from Bed and Board court action is a complicated legal issue. While you may be entitled to a Divorce from Bed and Board, a lawsuit must be filed against your spouse. Thus, a spouse has to consider the cost of the lawsuit and whether there will be any ultimate benefit from filing the lawsuit. Some attorneys seemingly convince a client to file for a Divorce from Bed and Board as a matter of course, even though the client will not benefit in reality by obtaining a Divorce from Bed and Board. It is important to talk to an experienced divorce attorney to discuss the pros and cons of proceeding with a Divorce from Bed and Board court action. It is true that many of the reasons a Divorce from Bed and Board is permitted may result in unique circumstances wherein the “at-fault” spouse may owe more alimony or forfeit certain rights normally available to a spouse. Hiring an experinced divorce attorney is strongly advised to deal with this often complicated and misunderstood issue. One important item to keep in mind, obtaining a Divorce from Bed and Board does not mean you are divorced from your spouse. You still must obtain an absolute divorce after one year of physical separation.
In some cases a marriage can be annulled if it is determined that your marriage is void or voidable. A void marriage means that it never legally occurred. A voidable marriage means that certain circumstances may allow the divorce to be voided by the court. An annulment in North Carolina requires a lawsuit. The parties cannot simply agree to an annulment. The court must hold a trial to determine if there are valid reasons for an annulment. Perhaps the most common reason for an annulment in North Carolina is in the case of bigamous marriages, wherein one party was already legally married when the new marriage was conducted. This can occur due to one spouse misleading the other spouse or can occur innocently due to one spouse not realizing his prior divorce case was never finalized. Another somewhat common ground for an annulment is based upon the impotence of a spouse. If you are contemplating filing for an annulment, you must seek advice from an attorney that has handled annulments for an extended period of time. The process of obtaining an annulment is a minefield compared to obtaining an Absolute Divorce and hiring the wrong attorney can cost you greatly, in time and money.
Contact an Experienced North Carolina Divorce Lawyer Today
The primary reason to hire an experienced divorce attorney is to protect your assets in the event of a divorce and to protect the best interests of your children. Without an experienced divorce attorney, it is possible that you will not receive an “equitable” distribution of assets and debts, a fair amount of alimony, a proper amount of child support, or a fair custodial arrangement for your children. Let the North Carolina family law attorneys at Kirk, Kirk, Howell, Cutler, & Thomas, LLP help secure your future after divorce. Call our Raleigh law office at (919) 615-2473 or schedule a consultation today. We will work quickly to provide a fair outcome and endeavor to save you the stress and strain of a messy divorce.
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