There is perhaps no more difficult decision one can face in life than ending a marriage, even a very bad one. That difficulty is compounded when children are involved. Life after separation and divorce will truly never be the same. But if the tools available to the family law attorney and client are used properly, life after separation and divorce will be substantially happier, and more rewarding, than it was within the marriage. Many separated or divorced spouses and parents find that their greatest happiness occurs in this new chapter of their lives, one they have considerable control over writing. It is our goal for each of our family law clients to experience such happiness in their post separation/divorce life.
There is no legal requirement that separated spouses actually consummate the end of their marriage in a formal divorce. Some separated spouses live that way for the remainder of their lives and enter into a Separation Agreement to govern the financial implications of living separate and apart from one another. However, absent a formal divorce, a separated spouse may not remarry. Unless a separated spouse has a will, upon his or her death, property will be distributed to the other spouse no differently than had the marriage remained intact.
North Carolina is a no-fault divorce state. That means that neither spouse needs to establish that the other is at fault in order to be entitled to a divorce. A divorce is granted so long as the husband and wife have lived separate and apart for one year following the initial date of separation, with the intention of ending the marriage. No matter how much the other spouse would prefer not to be divorced, if you have lived separate and apart from him or her for one year with the intention of ending the marriage, you are entitled to a divorce. The proceeding to obtain an “absolute divorce” (after the full year of separation) is quick and easy. You will not need to testify; nor will your spouse. You will not even have to appear in court. You will simply receive a phone call or e-mail letting you know “you are divorced” and a copy of the formal Judgment for Absolute Divorce for your records. That document is a public record.
Many unhappily married spouses believe they have an obligation to “ride out” the bad marriage for the sake of their children. In many cases, doing so causes more harm to the children than good. Spouses in this situation should understand that North Carolina’s child custody laws exist to promote the best interests of their children, and that properly structured, a child custody arrangement between separated parents may better promote their children’s long-term welfare than being trapped under one roof with warring parents.
Child custody arrangements vary tremendously depending on the circumstances of the parents and children. Typically the parents live in two separate homes with the children spending “custodial time” in each home (with clothing and possessions in each) with joint decision-making authority over educational, religious, health, extracurricular, and other activities in which the children participate. In rare situations, where one parent is deemed “unfit” because of domestic violence, dependence on alcohol or drugs, mental instability, or other deficits which prevent him or her from being an effective parent, sole custody may be granted to one parent or the other, with the other parent having only visitation rights and no right to make decisions on behalf of the children. In this day and age, sole custody is the exception, not the norm.
Though many years ago a preference existed in the law for custody of young children to be placed primarily with their mother, that preference no longer exists. If anything, most judges now have a preference for custody to be divided equally, 50/50, all other things being equal. This preference is based on the notion that children develop best when they have equal doses of both parents in their lives. But even a 50/50 custody arrangement can have many variations, such as week-on/week off, every Monday and Tuesday with one parent, every Wednesday and Thursday with the other, with alternating weekends, and even splitting up children to have one-on-one time with each parent. There is no “one-size-fits-all” solution to child custody. The best arrangement takes into account each parent’s employment situation, the age of the children, where the parents live, and where the children attend school, religious institutions, and extracurricular activities. Virtually all custody agreements also address where the children will be on holidays, summer vacations, and during their and the parents’ birthdays. Typically children are placed with one parent for Thanksgiving and the other for Christmas, rotating those holidays every other year.
There are three types of custody recognized in North Carolina: emergency custody, temporary custody, and permanent custody. Emergency custody may be obtained if one parent alleges that there is a physical danger to the children presented by the other parent or that there is a substantial risk of the other parent absconding with the children – emergency custody results in sole custody being granted to one parent. When an order of emergency custody is entered, it typically lasts for less than two weeks, at which time a hearing will occur to determine whether there are sufficient grounds to continue such a sole custody arrangement. Temporary custody is the custody arrangement that exists until a permanent custody arrangement is either agreed upon or determined by the court. In many counties, including Wake County, it can take a considerable length of time until a permanent custody hearing is scheduled. For that reason, a hearing on temporary custody is typically scheduled within a few weeks of when a custody case is filed. A hearing on temporary custody is a limited hearing, typically limited to two hours in length.
Wake County requires all parents involved in custody litigation to attend a mandatory mediation with a trained mediator employed by the Court. The goal of these mediation sessions is to reach a “Parenting Agreement” which establishes a custody schedule that may be signed by the judge as a court order. Attorneys are not permitted to attend these mediation sessions. There is no requirement that a parent reach an agreement with his or her ex-spouse at such a mediation. An agreement may be reached at a later time. And in some situations, it is simply not possible to reach an agreement. When that happens, the Court will hold a formal custody hearing, with both parents – and often other witnesses – providing testimony regarding each parent’s fitness. Minor children do not testify at child custody hearings and generally do not have a role in the process. In fact, parents who are adversaries in child custody litigation best promote their children’s welfare by shielding their children from all aspects of the process. As odd as it may seem, children should not become personally involved in child custody litigation.
In high-conflict child custody situations, a Parenting Coordinator may be appointed by the Court to help the parents make decisions about the children and to assist the Court in ensuring that the letter and spirit of the child custody order is being carried out. Though there is a cost associated with a Parenting Coordinator, that cost often pales in comparison to the cost of fighting in court every time there is a disagreement over vacation schedules, extracurricular activities, and the schools they will attend.
Even where a child custody order exists and has been in force for a long time, it is possible for one parent to move to modify it to change the custody arrangement or the level of decision-making authority each parent has. Though the legal standard is very high to change the terms of a child custody order, a judge has discretion to do so where the circumstances of the parties’ situation has changed substantially, such as when one parent moves a substantial distance away from the other or when a previously well-functioning parent begins to battle addiction or mental illness. Just as a judge has considerable discretion in initially setting the terms and conditions of child custody, he or she has considerable discretion in deciding whether to modify those terms.
In nearly all child custody cases, one parent will have an obligation to pay child support to the other. The amount of child support depends on many factors, including the number of days per year each child is with each parent under the custody schedule, which parent is paying for health insurance premiums and child care, and which parent is paying for other large expenses associated with camps, extracurricular activities, and so forth. If the combined income of the parties is less than $300,000 per year, the amount of child support one parent must pay to the other each month is typically determined by the Child Support Guidelines. Because the amount of child support owed depends on the custody schedule, it is not possible to calculate the amount of child support until at least a temporary custody schedule is established.
For tax planning purposes, both parents should understand that child support payments are not deductible to the parent paying them, and do not generate taxable income to the parent receiving them. Like child custody, child support may be modified based on changes in circumstances, such as the loss of a job or the substantial reduction in income. The parent paying child support is legally obligated to do so until each child turns 18 or graduates high school, whichever occurs later.
One of the least well understood aspects of family law is alimony. The obligation of one spouse to pay alimony to the other is based on the concept of “dependency.” An alimony obligation is no longer related to marital fault such as abandonment or adultery. If one spouse is “dependent” on the other’s income in order to meet his or her standard of living as existed on the date of separation, he or she is – generally speaking – entitled to alimony. The party paying alimony is considered to be the “supporting spouse” and the party receiving alimony is considered to be the “dependent spouse.” The supporting spouse’s obligation to pay alimony begins on the day of separation. If the supporting spouse refuses to pay the dependent spouse alimony, the dependent spouse may file a lawsuit seeking “post-separation support,” which is temporary alimony that will be paid until a final agreement or award of alimony is made. The dependent spouse may also seek to recover attorneys’ fees to help “level the playing field” in having to sue to recover alimony.
Whereas many judges have come to common understandings about what is best for children in terms of child custody, judges’ views about alimony tend to be more varied. The two biggest considerations in reaching alimony agreements or litigating over alimony are (1) the amount to be paid and (2) the duration alimony will be paid. The amount to be paid depends principally on the imbalance in the spouses’ incomes. A dependent spouse who does not work will generally be entitled to larger alimony payments, all things being equal, than a dependent spouse who does work. The longer the marriage, all things being equal, the longer the obligation the supporting spouse will be required to pay alimony to the dependent spouse. Judges look at a wide variety of factors when making these determinations and have enormous discretion in rendering their decisions. In Wake County, both spouses are required to complete a Financial Affidavit, which establishes their income levels and expenses, both on the date of separation, and prior to any hearing setting an amount of post-separation support or alimony. At a hearing on post-separation support, these affidavits will play an important role in the judge’s decision-making.
For tax planning purposes, both spouses should understand that post-separation support and alimony payments are deductible to the spouse paying them, and generate taxable income to the spouse receiving them. Like child custody and child support, alimony may be modified based on changes in circumstances, such as the loss of a job or the substantial reduction in income, unless an alimony agreement specifies otherwise. The supporting spouse’s obligation to pay alimony to the dependent spouse ceases upon the dependent spouse’s remarriage or cohabitation.
Equitable distribution is a fancy lawyer’s phrase meant to refer to the division of property between spouses following the dissolution of the marriage. That includes money, real estate, cars, 401(k) plans, artwork, furniture, business interests, and any other property interest that came into being during the existence of the marriage. Such property is considered “marital property.” Property acquired prior to the marriage or after the date of separation, or by inheritance or gift, is considered “separate property” that does not get divided as part of equitable distribution. In Wake County, once a claim for equitable distribution is filed, each spouse is required to complete an Equitable Distribution Inventory Affidavit which lists the marital and separate property owned by each party.
The law requires marital property to be divided between the parties “equitably.” All other things being equal, “equitably” = “equally.” Thus, if the total value of the “marital estate” were $500,000, each party would be entitled to a distribution of $250,000 in assets. Only very rarely do judges make unequal distributions of marital property. Unfortunately, there are so many different types of property interests, and so many different ways to value them, that it can often be difficult to resolve equitable distribution claims without employing appraisers and other experts. If the parties cannot agree on whether property should be classified as marital or separate, valuation, or how property should be divided, an equitable distribution claim may be resolved by the judge.
For tax planning purposes, both spouses should understand that the division of marital property, generally speaking, is not considered taxable income to either party. If one spouse pays the other a sum of money to equalize the marital assets each holds, that payment is generally not tax deductible to the party making it and is generally not considered taxable income to the party receiving it. Unlike child custody, child support, and alimony, an equitable distribution award is final and may not be modified for any reason.
Extra-marital affairs are an unfortunate, but recurring, theme in family law cases. All too often, a spouse that believed he or she was part of a strong, loving marriage learns the hard way that the other spouse was secretly having an affair. Though sometimes marriages are strong enough to survive following disclosure of the affair, in many instances, the affair precipitates separation and, ultimately, divorce.
Apart from the effect an affair may have on family law claims against one’s spouse, it also may provide a cause of action against the other spouse’s paramour. Those claims are labeled “alienation of affections” and “criminal conversation.” Collectively, they are sometimes referred to as “heart-balm torts.” These claims are pursued against the paramour separate and apart from family law claims, often in a completely different court.
To prove a claim for alienation of affections, the jilted spouse must prove that, prior to the commencement of the affair, he or she had a loving marriage, that the loving marriage was diminished or destroyed by the paramour’s conduct, and that it was that wrongful conduct that led to the diminishment of the marital relationship. The jilted spouse may seek damages for emotional distress and mental anguish, shame, humiliation, and economic damages, which may include the loss of the cheating spouse’s financial contributions toward the marriage. In the appropriate case, punitive damages may be available to punish the paramour for his or her actions.
The thrust of an alienation of affections claim is that the love and affection of the cheating spouse toward the jilted spouse was “alienated” by the paramour. For that reason, such a claim may exist even if the paramour and the other spouse do not engage in sexual conduct—though they almost always do. It is sufficient if the paramour interfered with the marriage to the point that the love and affection the other spouse once directed within the marriage becomes re-directed toward the paramour. This can occur through both in-person contact as well as virtual contact, such as texts, phone, FaceTime, SnapChat, etc.
Criminal conversation is a euphemism for the act of sexual intercourse with someone else’s spouse. Though the word “criminal” is used in the label, it is strictly a civil claim for money damages. A single act of sexual intercourse is sufficient to state a claim for criminal conversation. Typically, a criminal conversation claim is joined together with a claim for alienation of affections because the damages arising from this type of conduct flows primarily from the alienated affections of the cheating spouse.
The strength of a plaintiff’s claim for alienation of affections and criminal conversation depends on many factors, including the length of the marriage, the length of the affair, whether the married couple had young children, and whether the paramour knew or was friends with the jilted spouse before or while having an affair with the cheating spouse. Evidence that may strengthen the claim includes photographs depicting a loving bond between the married couple, testimony from friends and family regarding the strength of their relationship prior to the affair, and cards, notes, texts, etc. written by the cheating spouse expressing love and affection toward the jilted spouse just prior to the affair.
The strongest alienation of affections/criminal conversation case would be one in which, just prior to the affair, the cheating spouse and the married spouse had a strong, loving relationship, documented by photographs, cards, notes, and the testimony of friends and family, and one or more children were born in the year or two preceding the affair—and where the affair continued to the point that the cheating spouse and the paramour began living together or even got married themselves. The case would be even stronger if the paramour purported to be friends with the jilted spouse at the very time he or she was secretly engaged in a sexual relationship with the other spouse. Even stronger would be a case in which the paramour and the other spouse had sexual relations in the marital home or bed and/or the paramour wore the jilted spouse’s clothing or jewelry.
In contrast, a defendant-paramour in an alienation of affections case typically will attempt to demonstrate that the marriage began falling apart prior to the affair, and will seek to introduce evidence that the spouses were sleeping in separate bedrooms, did not regularly have sex, were constantly fighting, and openly discussed the topic of divorce. The defendant may also seek to demonstrate that the cheating spouse had cheated with others besides him or her or that the affair was short-lived, such that the paramour’s conduct could not be considered the proximate cause of the failure of the marriage.
A lawsuit for alienation of affections or criminal conversation must be brought no later than three years from the last act of the paramour giving rise to these claims. For a criminal conversation claim, that means no later than three years from the last time the paramour and the cheating spouse had sexual intercourse. For an alienation of affections claim, that three years may be based on other conduct by the paramour, such as telephone calls or texts to the cheating spouse which continued to alienate him or her from the marital relationship.
The Marital Home
Separation usually occurs when one party moves out of the marital home with no intent to return to the marriage. When that occurs, the spouse remaining has certain rights and protections, as does the spouse moving out. The remaining spouse has every right to change the locks and keys to all entrances and exits and/or any security or alarm system and passcodes. He or she can insist that the other spouse remain off the premises and the law of “domestic trespass” will protect that spouse if the other comes onto the property without permission.
The spouse who moved out has a right to gather his or her belongings from the house—clothing, accessories, personal care products, makeup, memorabilia, etc. This can occur in one of two ways: (1) if you and your spouse can work together, this can be accomplished together by walking through the house together and allowing the spouse moving out to gather his or her belongings; or (2) if this simply isn’t possible, the spouse who moved out can arrange to have a deputy sheriff accompany him or her to the marital home to retrieve his or her belongings. Note that the deputy sheriff will not referee a dispute as to which items can be removed from the marital home. If there is a dispute, the disputed item will likely remain in the marital home until further proceedings occur to determine where it belongs. Do not forget important papers like your Passport, social security card, birth certificate, car title, etc. as well as more sentimental items such as photographs, cards, letters, home videos, etc.
For the spouse moving out, there is a high likelihood you will never be able to enter the home again once you have retrieved your belongings. Therefore, before even moving out, you should make it your business, to the extent you are able, to document all existing property within the home. Use your cell phone to photograph or videotape each room in the house, showing each and every item of physical property, furniture, electronics, kitchen items, china, crystal, silver, wall hangings, rugs, rare books, collections, sporting equipment, linens, jewelry, etc. Do not forget closets, the attic, and outdoor storage areas. Though you are leaving all of these items behind, you will ultimately be entitled to receive, typically, half the value of all such items and/or the actual items to help equalize the distribution of the marital estate.
Also, if there is one common computer used to document and account for household accounts and expenses, make a copy of the files that document those expenses so you will be on an equal footing with your ex-spouse when it comes time for the equitable distribution of property.
Once the immediate aftermath of the separation has passed, you and your spouse will need to decide whether the marital home will be placed on the market (which may be the only realistic alternative if your collective income is not enough to pay the monthly expenses of two residences). If the house is to be put on the market, you will need to cooperate with your spouse in locating and signing an agreement with a realtor and in placing parameters on the price range for the sale of the house. A well-written separation agreement can provide direction to the realtor regarding how to distribute the proceeds of the sale as between you and your spouse as part of a larger distribution of property.
What about the payment of the power, gas, water, and cable TV bills? Several practical considerations come into play. If you are the spouse leaving the marital home, true enough, continuing to make those payments will not directly benefit you. However, do you want to explain to the judge at a hearing on post-separation support, or temporary child support, that you let the power company turn off the power, or city turn off the water, because you refused to pay bills your spouse was unable to pay? If those bills are tied to your name, do you want to damage your own credit? Obviously, the goal is to get those bills into the sole and exclusive name of the spouse staying in the marital home as quickly as possible and to have financial responsibility for those bills pass to that spouse. But it may be unrealistic for that transition to happen in the first few weeks or even months following separation.
Mail and Address Changes
If you are the spouse leaving the marital home, make sure to immediately place a change of address request with the Post Office so that you are not relying on your spouse to provide any mail of yours (including bills and other important financial information) that is delivered to the marital home. You will also want to provide your change of address to your children’s schools, doctors, and those associated with their camps and other activities.
Typically each spouse maintains possession of the vehicle they ordinarily use after they separate, no matter how each vehicle is actually titled. In equitable distribution, the vehicles will be valued and distributed, such that each spouse will have clean title to the vehicle they drive. Also, when you are gathering your belongings from the marital home, locate and retrieve any spare car keys such that it would not be possible for your spouse to access your vehicle post-separation.
If both of your vehicles are part of the same insurance policy, consider obtaining new and different insurance for your vehicle. If your spouse’s income is sufficient for him/her to pay for his/her own vehicle insurance, it’s perfectly OK for you to stop paying the insurance on that vehicle.
Bank Accounts, Brokerage and Retirement Accounts, Credit Cards, and Loans
First and foremost, it is critical to establish the balance of every account of both spouses on the date of separation, because it is the date of separation account balances which will ultimately be used to equitably distribute marital property. Use your online accounts to create and save statements of each such account—including retirement, brokerage, IRA, and 401(k) accounts and all loans, in particular the mortgage on the marital home. To the extent necessary, call or visit financial institutions for which you do not have online access to do likewise.
Joint bank accounts may be accessed at any time by either account holder. In fact, either account holder may remove 100% of jointly held funds and close the account. It is therefore wise to get to the joint accounts before your ex-spouse does and move half of the funds to a personal account (since presumably half of those funds will be distributed to you in equitable distribution). You should not rely on any joint accounts post-separation to save or hold your money. Immediately redirect all direct deposits of your income into your personal account: income earned after the date of separation is almost always considered your property, rather than marital property.
Credit cards held jointly with your spouse are another opportunity for mischief and financial harm. The best practice post-separation is to remove yourself from all joint credit cards and create new credit card accounts with new credit cards, to which your spouse will not have access.
To the extent you have jointly held loans, such as a mortgage, you will need to decide who will be paying such obligations so that payments continue, the marital home is not placed in jeopardy, and your credit rating is not damaged. The same advice applies to installment contracts on furniture, jewelry, etc. Typically the spouse remaining in the marital home will need to pay the mortgage while the spouse moving out is responsible for his or her own housing. The spouse paying the mortgage will usually receive credit in equitable distribution for the portion of the mortgage payment that is used to reduce the principal loan balance. The same general logic applies to car loans: typically the loan associated with the car you are driving is your responsibility to pay off post-separation, though credits for such payments may be part of negotiations in equitable distribution.
At some point, it may be necessary to determine and confirm each and every expense you have incurred from the date of separation forward for both yourself and on behalf of your children. For that reason, it is advisable to begin to save every invoice and receipt, every credit card statement, and every cancelled check, and keep them well organized (digitally if possible) for ease of reference. In addition, as tedious as it may be, it can be a huge time saver and aggravation preventer to keep a current spreadsheet of all such expenses as they are incurred. The more detailed and organized you are about such expenses, the more likely it is to recover everything which would be permitted by the laws of child support, alimony, and equitable distribution.
Personal Income Taxes
Until you are officially divorced, your may continue to file joint tax returns with your spouse. Of course, whether you wish to do so is another question. Consult a tax advisor to determine the pros and cons of filing jointly versus filing separately. You will also need to reach agreement with your spouse regarding who will pay any income tax owed or what portion of a refund you will each receive. If your separation post-dates the submission of your returns and you are owed a refund, there will need to be agreement (or litigation over) the portion of the refund to which you each are entitled.
Change all passwords to all accounts—social media, online banking, credit cards, frequent flyer and hotel points programs, Amazon and online merchants, etc.—as quickly as possible. Though your ex-spouse may not know any of your passwords, better safe than sorry.
Social Media, E-Mail, & Texting
Establish a new e-mail account on Gmail, Yahoo, or another provider as quickly as possible. Use that account for all communications related to your impending divorce, including with your attorney.
Consider everything you post, every e-mail you send, and every text you send or receive as something which may being shown to the judge in some future Family Court proceeding. Therefore, be careful what you say, be careful what you post, and even be careful of the seemingly private conversations you have in text or online with friends and family. It is quite possible that your ex-spouse will be entitled to receive each and every one of those as part of the “discovery” process in your Family Court litigation. Most importantly, be especially careful in how you communicate with your ex-spouse. Nothing turns a judge against a family law litigant more than texts or e-mails from one ex-spouse to the other that are mean-spirited, bullying, harassing, or just plain foul. Therefore, as difficult as it may be, you must communicate politely and respectfully with your ex-spouse, even if that is not reciprocated. Better to let the judge see the dark side of your ex-spouse than your own.
Can you delete your posts, texts, and e-mails that relate in some way to your marriage or your children? Believe it or not, generally speaking, the answer is “no.” All parties to litigation have a duty to preserve electronically stored information (as well as hard copies of notes, letters, records, etc.) If you delete posts, texts, or e-mails, you will likely be required to confess that you have done so if litigation ensues. And if you have done so, the judge is entitled to conclude that you did so because the information deleted would have been harmful to you. As the old saying goes, “the cover up is worse than the crime.” Don’t fret over the effect the existing posts, texts, or e-mails may have on you in Family Court litigation. But going forward, make sure you do not create any that will potentially cause you harm.
Yes, you may. Yes, you should. When you are ready. North Carolina law is very clear that intimate relations with a non-spouse that occur post-separation do not constitute adultery or other marital misconduct and do not impact alimony or other Family Court proceedings. The person you date also does not risk a lawsuit for alienation of affections or criminal conversation, because those claims require an existing marriage (without separation). So you may, without fear, sign up for Match, e-Harmony, or other dating sites. Beware, however, that your ex-spouse may be entitled to learn about your dating activities—including your posts on these sites—so use discretion and common sense.
An additional consideration to resuming a normal romantic life is your children. If you have young children who will be spending time with you, it is wise to keep your dating life a secret from them in the initial months following separation. Separation and living in two different households will be a difficult adjustment for them. Adding new romantic partners to that picture will make their adjustment significantly more complicated. Consider how you would feel if your ex-spouse began introducing the children to his or her romantic partners.
To the extent you own retirement accounts, IRAs, 401(k) plans, annuities, or life insurance policies, it is quite likely that you have named your spouse as one of, if not the exclusive, beneficiary. Presumably, now that you have embarked on the path toward divorce, you will want to change that. You need to contact each plan administrator, life insurance company, etc. and fill out the necessary paperwork to make those changes.
Child Support and Post-Separation Support
Though these topics are covered elsewhere, be aware that these obligations commence immediately upon separation—long before lawyers or judges are even involved. Typically the breadwinning spouse will need to begin making child support payments within the first month of separation to ensure that the children are being provided for in a manner consistent with the Child Support Guidelines. Similarly, a spouse considered a “supporting spouse” must begin making “post-separation support” (temporary alimony) payments to the “dependent spouse.” These terms are discussed in the section addressing alimony.
The initial weeks and months following separation may prove to be the most difficult of your life. A good support network of family and friends will surely help you get through this period. That said, there are things you probably would be hesitant to discuss with family and friends, or to expose your weak or troubled emotional state. A good therapist can help you through these tough times and provide you with a safe outlet to openly discuss these thoughts and feelings. Most therapists have counseled a good number of clients through the post-separation time period and can provide you expert guidance on how to get through this difficult time. Though there is no guarantee that the therapist’s notes and records will be protected from discovery during Family Court proceedings, that concern alone should not dissuade you from reaching out for this kind of assistance.
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