Although the divorce rate in the United States has leveled off in recent years, it’s still over 40% for first marriages. The divorce rate for subsequent marriages may be as high as 60%. All marriage dissolutions involve emotional and financial issues regardless of the type of procedure or the length of the relationship. These issues are simply more difficult to resolve in some cases.
A family law attorney has two primary responsibilities in a marriage dissolution matter. First, an attorney must determine the best type of divorce, given the client’s needs and goals at that time. Second, an attorney advocates for clients and upholds their legal and financial rights. Without a lawyer to champion these rights, they usually take a back seat to other matters in the case people deem to be more critical.
Voluntary Separation
The formal divorce rate is very high in North Carolina, especially among couples who have been married before. The informal rate may be even higher. At one time or another, almost all couples separate. That separation could last a few days, a few months, or even longer. In fact, most of our marriage dissolution clients have been separated for at least six months.
Sometimes, the separation is a “test-the-waters” separation. Husbands and wives must find out for themselves whether the single life is better than married life. Voluntary separation agreements are usually an important part of this process.
As outlined below, judges only issue legal separation orders in limited situations. However, the parties themselves always have the right to make a voluntary separation agreement. Usually, this agreement covers parenting time divisions and FSOs (family support obligations), such as spousal and child support. A voluntary separation agreement may also include a property-and-parties restraining order. These orders offer some protection but aren’t as rigorous as a domestic violence-based protective order.
Generally, under North Carolina law, these agreements must be written, signed, and notarized. If a spouse later files for divorce, as is usually the case, custody and other key provisions in a voluntary separation agreement could change significantly if a judge determines the existing provisions aren’t in the child’s best interest.
Court-Ordered Separation
A divorce from bed and board (DBB) is basically a substitute for a fault-based divorce in North Carolina. Judges usually issue these orders if there is evidence of drug abuse, family violence, or other extreme misbehavior that threatens the well-being of the other spouse and/or the couple’s children.
In most ways, DBB orders mirror voluntary separation agreements. The judge makes provisions for FSOs and parenting time divisions. DBB orders often contain more substantial restraining orders that address the serious safety issues in the marriage. If this legal separation lasts more than a year, either spouse could file for a full marriage dissolution.
Simple Divorce
This procedure is technically a subset of an absolute divorce, which is discussed below. A simple divorce is available if the petitioner (filing spouse) does not want spousal support. Furthermore, the couple must have no children, no debts, and no assets.
Some divorcing couples have no children. Almost all divorcing couples have some assets and/or debts unless the marriage only lasted a few months. A simple divorce may also be an option after a longer marriage if a family law attorney drafted a prenuptial agreement.
Usually, judges enforce these agreements unless they are blatantly one-sided (i.e., you get all the debts, and I get all the assets). Additionally, if there is evidence of serious fraud or serious undue pressure to sign the agreement, the judge might invalidate it. Usually, prenuptial agreements cannot address child custody, parenting time, or related issues. So, if the couple has children, the petitioner must file an absolute divorce, even if the spouses agree on these matters.
Absolute Divorce
As mentioned, spouses may file for absolute divorce after they’ve been separated, formally or informally, for a year. A shorter waiting period may apply in some cases. Additionally, at least one spouse must have been a North Carolina resident for at least six months.
Unlike most other states, North Carolina doesn’t require the respondent (non-filing spouse) to agree to the divorce. The petitioner must only give the respondent legal notice of that filing.
Property division orders must create a just and proper division of the marital estate. That estate includes both debts and assets. Additionally, all child custody and related orders must be in the children’s best interests. If the spouses don’t agree on these divisions, they usually settle their differences during mediation. Very few divorce cases go to trial.
Contact a Dedicated Lawyer
To protect your legal and financial rights during a divorce or other proceeding, contact the experienced family law attorneys at Triangle Divorce Lawyers for a confidential consultation today.
