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, we hope you’ll consider the North Carolina divorce attorneys at Wake Family Law Group.
The Process of Separating
Divorce in North Carolina
Settlement Negotiations in North Carolina
Collaborative Law in North Carolina
Mediation in North Carolina
Arbitration in North Carolina
Med-Arb in North Carolina
Neutral Evaluations in North Carolina
Divorce Court in North Carolina
Divorce Appeals in North Carolina
The Process of Separating
Before you make the decision 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.
Getting separated in North Carolina does not require any special legal action. You are considered to be separated once you and your spouse begin living in separate residences with the intent to continue living apart. 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 separated for at least one year before you can legally file for divorce.
Divorce in North Carolina
Once you have been separated for at least one year — and if you or your spouse have 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 able to file for divorce. However, because issues relating to property division and alimony are required to be resolved prior to the entry of divorce through a separation agreement or through 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 prior to the finalization of the divorce.
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 individual 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 relatively inexpensive 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 taking adversarial positions. 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.
The concept of collaborative law is beautiful, and in theory, it makes perfect sense. But, in reality, separation and divorce often turn ugly. 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 pay a new attorney to get up to speed on your case. It’s important to consider your 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 bring 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 similar to mediation but is structured differently. 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 being subjected to the rules of 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.
Going to Court
The court system can be a valuable tool in NC family law proceedings, especially when dealing with a spouse who is uncooperative, deceptive 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 request additional filings — such as financial affidavits or property inventories — in preparation for trial.
During the time prior to trial, our attorneys will continue working outside of the court system to resolve the issues through other channels (such as settlement negotiations, mediation, etc.). In fact, 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 from both sides and reviewing the evidence.
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 of the official trial court record and the written arguments of the parties’ attorneys.
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.