The prospect of divorce can be overwhelming, and most people don’t know where to begin. Wake Family Law Group has guided countless people through the North Carolina separation and divorce process. We focus solely on family law, so we understand the important considerations and steps to take to protect your interests and help you reach the best possible outcome in your unique situation.
Below is an overview of the Separation and Divorce process to help you understand what to expect. When you’re ready to consult with an attorney and start the process of separation and divorce in NC, we hope you’ll consider the North Carolina divorce attorneys at Wake Family Law Group.
Before you decide to separate in North Carolina, there are several important issues you should consider: Should you leave your home? Where will you live? Can you support yourself financially? How should you share time with your children? Many people find it helpful to create a budget and begin compiling copies of important financial records before moving out of the house. It’s a good idea to speak with an attorney before separation takes place.
The separation process in North Carolina does not require any special legal action. You are considered to be legally separated once you and your spouse begin living in separate residences with the intent to continue living apart permanently. Many people choose to have a separation agreement drawn up to address important issues such as spousal support, child support, and child custody, and equitable distribution. If an agreement cannot be reached, you may decide to file a lawsuit to resolve the issues surrounding your separation.
North Carolina law requires you to be legally separated for at least one year before you can file for divorce.
Once you have been separated for at least one year — and if you or your spouse has been a legal North Carolina resident for at least six months — you can file a lawsuit requesting a divorce. You are not required to have a separation agreement to be filing for divorce in NC. However, because issues relating to marital property division and alimony are required to be resolved before the entry of a divorce judgment through a separation agreement or a pending or resolved lawsuit, many couples will wait until the completion of a separation agreement to file for divorce or will file a lawsuit to resolve other financial or children’s issues at the same time as filing for divorce.
If you have been served with a divorce complaint by your spouse, you generally have 30 days to file a response with the court. This response should include any counterclaims. Equitable distribution and alimony claims are cut off if you do not assert them before the entry of the divorce judgment.
Getting divorced in North Carolina doesn’t have to mean going to court. In many instances, our family law attorneys can work with your spouse’s legal counsel to exchange information and draft settlement proposals. Successful negotiations can result in mutually agreeable separation agreements and property settlements that are enforceable by the court.
If direct settlement negotiations fail, we will assess your situation and recommend taking a new approach that may include mediation, arbitration, or litigation. Adopting a new tactic can often jump-start stalled negotiations and lead to an eventual settlement.
The popular approach of collaborative law offers a cooperative and efficient way to resolve issues if you and your spouse are willing to make a good faith effort to disclose information and work together to reach an agreement. Collaborative law takes a serious commitment from both parties to share information openly, treat each other with respect and refrain from threatening court action. In the collaborative law process, the parties agree not to litigate the matter. The two parties agree to hold a series of structured meetings with their attorneys to work toward a settlement.
If a settlement cannot be reached, the attorneys for both parties must withdraw from the case and refrain from any further involvement. This stipulation is designed to ensure that the attorneys involved have an equally vested interest in reaching an amicable resolution.
Collaborative law is a great option when both parties are committed to working cooperatively to reach a resolution. But, sometimes, separation and divorce can turn ugly and contentious. The charged emotions and personal history can make it hard for couples to effectively work together — despite their best intentions. If the collaborative process does not work out, you will have to hire a new attorney to get up to speed on your case. It’s important to consider you and the other side’s emotional state and the seriousness of your unresolved issues before determining if collaborative law is right for you.
Mediation is another form of negotiation to avoid divorce litigation in North Carolina. Mediation involves selecting an impartial third party to assist you in reaching a settlement agreement before or after the filing of a lawsuit. An experienced and talented North Carolina mediator can assist in bringing even the most heated and passionate disputes to a successful resolution by negotiated compromise.
In recent years, mediation has proven extremely effective in helping couples reach settlements — typically in the form of an agreement or consent court order — that leave both parties satisfied.
While mediation does require payment of a mediator’s fee, you will often achieve significant savings by avoiding the delay and cost (financially and emotionally) of going through a trial.
Arbitration in North Carolina is another alternative dispute resolution process. Arbitration involves retaining an arbitrator, or private judge, to resolve your dispute in the privacy of a business office. The arbitrator acts in the same manner as a judge, regulating the exchange of information, hearing arguments from both sides, and ultimately ruling on disputed issues.
Both parties must agree to arbitration and sign a binding arbitration agreement that names the arbitrator, designates the issues which the arbitrator will be asked to rule on, and spells out any limitations to the arbitrator’s authority.
For people who prefer the privacy, flexibility, and freedom of working outside the court system, arbitration is an excellent choice. It gives you the ability to select a subject matter expert as arbitrator, to choose specific dates for hearings, and to reach binding decisions without having to appear in court.
The disadvantages to arbitration include the expense of retaining an arbitrator and the difficulty of appealing an arbitrator’s ruling if he makes mistakes. The expense of retaining the arbitrator is often counterbalanced by the efficiency of streamlining the process.
This approach involves a combination of mediation and arbitration. Both parties work together to select an impartial third party to serve as a mediator. If you are unable to resolve your dispute through mediation, the mediator then assumes the role of arbitrator and issues a binding ruling.
To facilitate a settlement, it can be helpful to have an independent third-party hear arguments and provide an unbiased legal opinion that predicts how a judge might rule if the dispute were to go to court. You can obtain a neutral evaluation regarding a single issue, such as child custody, or all issues relating to the separation.
The court system can be a valuable tool in NC family law proceedings, especially when dealing with a spouse who is uncooperative, unreasonable, or abusive. The court can provide a formal structure for obtaining information, for providing a fixed timeline to resolve issues, and for determining the rights and obligations of each party.
The litigation process involves a series of filings, beginning with a complaint, containing requests for relief. Upon receiving the complaint, the defendant prepares an answer that typically contains a series of counterclaims. The court will sometimes require additional filings — such as financial affidavits or property inventories — in preparation for trial.
During the time before trial, our attorneys will continue working outside of the court system to try and resolve the issues through other channels (such as settlement negotiations, mediation, etc.). The court typically mandates that the two parties attempt mediation before proceeding to trial in certain types of cases.
If the case does go to trial, the judge will issue an order after hearing the testimony and evidence from both sides.
If you receive an unfavorable ruling in district court and believe the court made a mistake, you may have grounds for appeal. Appeals are based on a review for errors of the official trial court record and the written arguments of the parties’ attorney.
Appeals are lengthy, often taking at least a year before a decision is given. The trial court is granted broad discretion in family law matters, thereby making it difficult to prevail on many issues. It is best to discuss with a lawyer whether success on appeal would be likely in your particular case, and, in addition, whether an appeal would be cost-effective.
