Legal separation in North Carolina occurs on the date you and your spouse move into separate residences with the intent to continue living separate and apart from each other.
Whether or not you can or should move out of the house is an issue that deserves careful consideration and discussion. Moving out without a clear plan or strategy can potentially have negative legal ramifications on your case.
In preparing for separation and divorce, it is very important to gather the records you need to get a clear picture of the family finances, assets and liabilities. First, collect the documents necessary to determine family income and expenses, including tax returns, paystubs, bank statements, and credit card statements. In addition, gather documents about your assets and debts, including investment or other financial account statements, appraisals of real or personal property, and statements for retirement accounts. If you or your spouse owns a business, locate the corporate tax returns, profit and loss statements, balance sheets and shareholder agreements.
If you suspect your spouse is having an adulterous affair, collect documentation that may evidence the affair, including detailed cell phone records and emails, as long as you can obtain them from a family computer that both you and your spouse use that either does not require a password to access your spouse’s email account, or has a password your spouse has shared with you. Do not use computer spyware to intercept email messages; this is illegal, and this evidence will not be admissible in court. Evidence can also be obtained by a private detective, from journals, diaries, or day planners kept by your spouse, as well as from credit card statements which track your spouse’s expenditures.
With regard to the impact of a separation on your children, it is a good idea to consult with a child psychologist who can help you communicate with your children about the separation in a straightforward and reassuring way. Above all, tell your children you love them and acknowledge any feelings they may express about the situation.
Separation and Property Settlement Agreements
Settlement of disputed issues is always preferable to litigation. At Gailor Hunt Jenkins Davis & Taylor PLLC, settlement is always fully explored as an alternative to litigation. If you and your spouse can agree to the terms of your separation and property division, then a separation and property settlement agreement may be for you.
Separation and property settlement agreements are legal contracts which may provide for the terms of your separation, child custody, child support, property division, responsibility for joint debts, alimony provisions and any other issues that you and your spouse may have arising out of your marriage.
In order to ensure the fairness of a separation and property settlement agreement, you should make certain that there has been a full and fair disclosure of all assets, debts, income and financial liabilities by both spouses. In addition, the division of assets requires that most assets be valued. The most typical assets that are valued by appraisers are real estate, business interests, tangible personal property and intangible assets such as retirement benefits.
In deciding what is appropriate amount for child support and/or spousal support, both parties should itemize their expenses based on, at least, the preceding 12 months average prior to the separation as well as current expenses. Tax consequences should always be considered before agreeing to a support arrangement. Very often, accountants are utilized to ensure that there are no unexpected tax consequences to the parties arising from their financial arrangements.
Gailor Hunt Jenkins Davis & Taylor PLLC can help you locate and value assets acquired during the marriage, and negotiate a fair settlement of care and custody of children, support and property division issues.
Postseparation Support and Alimony
According to North Carolina General Statute § 50-16.1A, postseparation support means spousal support to be paid until the earlier of either the date specified in the order of postseparation support, or an order awarding or denying alimony. An award of postseparation support is discretionary with the court.
A domestic action can often be a lengthy process. Postseparation support is a type of temporary support. It helps bridge the gap from the time a dependent spouse separates and first files a claim for alimony until the claim can be heard and ruled upon.
According to North Carolina General Statute section 50-16.1A, alimony means an order for payment for the support and maintenance of a spouse or former spouse, periodically or in a lump sum, for a specified or for an indefinite term, ordered in an action for divorce, whether absolute or from bed and board, or in an action for alimony without divorce.
In determining if you’re entitled to alimony, the court considers whether you’re a dependent spouse, your spouse is a supporting spouse and whether an award of alimony is equitable considering the circumstances. The court also considers acts of marital misconduct committed when determining alimony.
If the court finds that a dependent spouse committed an act of illicit sexual behavior during the marriage, the court will not award alimony. However, if the court finds that a supporting spouse committed an act of illicit sexual behavior during the marriage, then the court will order the supporting spouse to pay alimony to the dependent spouse.
The amount and duration of an alimony award are completely within the discretion of the court. There are no set rules for determining how much alimony you may pay or receive, nor for how long you may pay or receive it. Generally, however, these awards are based upon the income and expenses of the parties.
Divorce from Bed and Board
In North Carolina, a divorce from bed and board is the equivalent of a judicial separation, and is a fault-based claim. You may be entitled to a divorce from bed and board if your spouse abandoned the family, maliciously turned you out of doors, committed adultery, a cruel and barbarous act or indignities that rendered your condition intolerable.
Only the injured spouse is entitled to bring an action for divorce from bed and board. This action will not enable you to remarry; you must still obtain an absolute divorce.