In a nutshell, divorce permanently severs all legal ties between husbands and wives. Marriage dissolution is always a court process. Legal separation is usually an informal process. Spouses set some ground rules that help them to live separate lives without getting a judge involved, at least at this point.
Ground rules are helpful for North Carolina separations and divorces. The Tarheel State has a one-year divorce waiting period in most cases. Generally, couples legally separate before they file for divorce to make that 12-month waiting period more manageable. Other spouses never get formal divorces, mostly for religious or financial (health insurance and Social Security) reasons.
A family law attorney is a key partner in both legal separation, or divorce from bed and board, and absolute divorce matters. Attorneys draft clear documents that are easy to understand and legally enforceable. Additionally, an attorney stands up for your rights in court.
Which is Better, Divorce or Separation?
Both procedures have some pros and cons. A Raleigh family law attorney gives you solid advice in these matters, but only you can decide what’s best for you and your family.
Separation is usually best if both spouses truly believe they just need a break, and then they can work out their problems. The post-divorce single life normally isn’t all it’s cracked up to be. Once both spouses understand that and that the grass isn’t always greener on the other side of the fence, they can often work out their issues.
Informal separations are much easier to reverse than formal divorces. Separated couples simply pick up where they left off. Divorced couples must legally remarry.
On the flip side, informal alimony and child support agreements are difficult to enforce. A family law attorney cannot enforce these matters in family court since a family law judge has no jurisdiction. Informal agreements are enforceable as contracts, but a slew of defenses, such as the impossibility of performance, apply.
Generally, we suggest that if you haven’t been separated before, you should not rush to file a divorce.
Legal Separation Procedure
Procedurally, a legal separation agreement is a lot like a premarital agreement. The biggest difference is that a separation agreement is more comprehensive. Prenups usually cannot include child custody and child support provisions. These areas are often the focus of a separation agreement.
Significantly, these agreements include a separation date. This date begins the aforementioned twelve-month countdown. A spouse can file a divorce before the waiting period expires, but the judge cannot grant it before that waiting period expires. This extended cooling-off period usually isn’t much of an issue because, in most cases, the marriage dissolution process takes more than a year. More on that below.
Additionally, separation agreements include property division provisions. The 50-50 property division presumption technically only applies in formal divorces. But a separation agreement should probably follow this informal rule to avoid problems later.
Marriage Dissolution Procedure
The divorce process in North Carolina begins with the service of process. After a brief separation, this step is usually a formality.
After an extended separation, this step could be problematic. Many spouses move on, physically and emotionally, after an extended separation, especially if they don’t have good relationships with minor children. Alternatives to personal service, such as service by publication, may be available in these situations.
A judge usually holds a temporary hearing about 14 days or two weeks after one of the spouses files a divorce petition. A temporary order is much like a separation agreement. Enforceability and a restraining order are the two biggest differences.
Since the judge made the order, a judge has the power to enforce this order. Contracts and other defenses are usually irrelevant. A spouse obeyed the order or didn’t obey it. Judges also have the power to modify temporary orders if circumstances materially and substantially change.
Many temporary orders include parties-and-properties restraining orders. These rather generic orders prohibit some forms of extreme misconduct and prohibit one spouse from interfering with the property rights of the other spouse. More specific restraining orders are appropriate if a spouse makes verified allegations of domestic violence.
Financial and other discovery in a divorce is normally straightforward or complex. The spouses may simply need to exchange tax returns and other documents. Or, a family law attorney may need to launch a full-scale investigation. Similarly, if the parties disagree about child custody matters, a judge normally asks a social worker to investigate the matter and submit a written report.
Once discovery is complete, many divorces settle during mediation. A professional mediator helps transform broad agreements on general principles, like we should do what’s best for the kids, into specific agreements on certain details, like a parenting timeshare plan.
Reach Out to 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.