In North Carolina, the separation of a married
couple takes place when they move into separate
residences with the intent of living separate
and apart. It is advisable for a couple contemplating
separation to consult with their attorneys
prior to their actual separation for the purpose
of drafting a Separation Agreement and Property
Settlement. This is a written contract between
the spouses and can cover all or some of the
issues involved in their separation and eventual
divorce. And because a Separation Agreement
and Property Settlement is a legally binding
contract once it is signed by both spouses
and notorized, it is important to consult
with an attorney to fully understand your
rights
under our state
statutes before entering into any such contract.
All issues surrounding a couple’s separation
and divorce can be resolved through a Separation
Agreement and Property Settlement with the
exception of the couple’s actual divorce,
which can only be granted by a court. For example,
the couple can determine how their marital
property is to be divided, the amount and duration
of spousal and child support, and the child
custody schedule the parents will follow. The
obvious advantage of a Separation Agreement
and Property Settlement is that all these issues
can be resolved without the need for costly
litigation .
There are pronounced advantages to settling
the issues surrounding separation and divorce
through a Separation Agreement and Property
Settlement rather than litigating those issues.
The most prominent advantage is cost. Litigation
is expensive, time consuming, and its outcome
uncertain. During separation and divorce, a
family’s finances are stretched thin
to support two households when during the marriage
there was only one household to support. Worse
yet are the emotional costs exacted in litigation.
Months of adversarial litigation can exacerbate
the personal relationships between immediate
and extended family members already under severe
strain from the break-up of the couple’s
marriage. This is a particularly difficult
period for the children involved regardless
of their ages.
Another advantage to the settlement of issues
through a Separation Agreement and Property
Settlement is that the couple remains in control
of the negotiations and ultimate outcome. It
should be remembered that at the end of a trial,
it is the judge who makes the final decision
governing very telling and important aspects
of the couple’s lives and the lives of
their children. In sharp contrast, the parties
to a contract, such as a Separation Agreement
and Property Settlement, negotiate and mutually
agree to its terms and in the end their contract
is tailor-made to fit their priorities and
needs.
In some cases a married couple can handle their
settlement negotiations between themselves
and need an attorney only at the beginning
to fully understand their rights and at the
tail-end to properly draft their Separation
Agreement and Property Settlement. This is
true where the couple is like-minded and their
relationship remains open, amicable and even-handed.
In most cases, however, married couples on
the verge of separation will need their individual
attorneys to handle their settlement negotiations.
You should understand that an attorney is bound
by the legal profession’s code of ethics
to represent and advocate for the best interests
of a single party. The wife’s attorney,
for example, cannot serve as the legal counsel
for the husband since it is presumed that each
spouse’s interests are different and
conflicting. You are advised to hire an attorney
to handle your settlement negotiations if your
relationship with your spouse is acrimonious,
if you are ill-informed as to your marital
assets and their value, if your priorities
and objectives are radically different from
those of your spouse, or if you feel that you
at a disadvantage in negotiating with your
spouse for whatever reason.
Before meeting with an attorney to discuss
an eventual separation from your spouse, you
should give careful thought to what your
priorities and objectives are. For example,
do you want primary custody of your children
and ownership of the marital home and its furnishings
to provide some continuity for your children?
Are you concerned about your future financial
security upon your retirement and therefore
looking for a substantial share of your spouse’s
retirement accounts? If your children are near
college-age, do you want marital assets converted
to a trust fund to cover their college education?
If you and your spouse are unable to settle,
then the issues pertinent to your case – child
custody and support, spousal support in the
form of post-separation support and alimony,
divorce from bed and board (discussed below),
property division and absolute divorce – will
be settled through court action. The Law Offices
of Charles H. Montgomery have over 29 years
experience specializing in family law and have
tried hundreds of cases on all issues involved
in family law.
On the issue of whether a spouse should date
after separation and before divorce, you should
understand that post-separation dating can
be used as evidence of adultery occurring during
the marriage. If there was no illicit sexual
conduct before your date of separation, then
post-separation dating is not relevant to a
claim for post-separation support or alimony.
However, a paramour who stays overnight when
your children are present can be grounds for
denial of your custody or visitation. You should
be forewarned that you will likely be asked
under oath at a deposition or at trial about
any dating or romantic relationships. To answer
these questions falsely would constitute perjury.
You may plead the Fifth Amendment privilege
against self-incrimination under certain limited
circumstances. Dating after separation and
before divorce may also have a serious negative
impact on the settlement negotiations between
you and your spouse. At best, your infidelity
can cause your spouse hurt and embarrassment.
At worst, it will provoke feelings of anger
and revenge, which will greatly complicate
your settlement negotiations with your spouse.
Also, your spouse might file an action for “alienation
of affections” or “criminal conversation” seeking
substantial money damages against your paramour
based upon his or her sexual intercourse with
you or interference with the marital relationship
between you and your spouse either before or
after the date of separation and before a divorce
is final. Conversely, if you spouse is engaging
in extra-marital affairs, then you are the
wronged spouse and are in the position of filing
an alienation of affections or criminal conversation
lawsuit against your spouse’s paramour.
If that is the case, you are well-advised to
obtain proof of his or her affair through a
private detective.
In most cases, a spouse voluntarily separates
from his or her spouse, however, there are
cases where the court orders the legal separation
of a married couple. This is called divorce
from bed and board. Divorce from bed and board
is not an absolute divorce. The married couple
remains legally married to each other, albeit
ordered by the court to live separate and apart
from each other. A divorce from bed and board
is granted based on one or more of the following
grounds:
One spouse abandoning the family;
One spouse maliciously turning the other
spouse out-of-doors;
One spouse treating the other spouse
in a cruel and barbarous manner, endangering
his or her life;
One spouse offering indignities
to the person of the other spouse to such
an extent
as to render his or her condition intolerable
and his or her life burdensome;
One spouse using drugs or alcohol in
excess; and
One spouse committing adultery.
If the court
finds that a spouse has committed one or more of
these acts, the offended spouse may be ordered to
leave the marital home. Divorce from bed and board
is not commonly granted. It should also be noted
that if you are granted a divorce from bed and board,
you lose all the automatic inheritance rights that
exist by virtue of your marriage.
Spouses who have separated but not divorced can,
at any time, change their minds and reconcile. Lawsuits
that have
filed
will be ended and hearings that has been scheduled
will be dropped from the court calendar.
