In Episode 3, host Jaime Davis explores common myths surrounding separation and divorce with her law partner Carrie Tortora. Carrie and Jaime discuss such topics as whether “papers” are required to be legally separated; whether committing adultery means a spouse loses everything; and whether the children get to decide where they live.
Note: Our Podcast, “A Year and a Day: Divorce Without Destruction”, was created to be heard, but we provide text transcripts to make this information accessible to everyone. All transcripts on our website are created using a combination of speech recognition software and human transcribers and could contain errors.
Jaime Davis: Welcome to Episode 3 of ‘A Year and a Day’. I’m your host, Jaime Davis. In episode two I discussed the many benefits of mediation with fellow family law attorney and mediator Lynn McNally. In this episode, I will be discussing some common myths that surround the topic of separation and divorce with my law partner Carrie Tortora. Carrie is a board certified family law specialist and has practiced exclusively in the area of family law for over nine years. I’ve been fortunate to have Carrie in the office next to mine for the majority of those nine years, and she and I often work together on our cases. Welcome, Carrie.
Carrie Tortora: Thank you.
Jaime Davis: Carrie, I see that you have put together a list of some common myths about separation and divorce. Before we start going through that list are these myths in any particular order?
Carrie Tortora: No, they are just common questions or myths that clients come to us and ask us about during a consultation or at any stage in their case.
Jaime Davis: So number one is not necessarily the most common. It’s just a list of ten or eleven and the ones that you run across the most?
Carrie Tortora: That’s right. They’re in random order.
Jaime Davis: All right. Well, then let’s get started. So, number one, a person doesn’t need papers to be legally separated.
Carrie Tortora: That’s right. Contrary to popular belief in North Carolina, you don’t need to file anything with a court, nor do you need to sign any sort of written document to be separated. The only two things that need to happen in order to be separated are you need to be physically separated. Meaning living under different roofs with the intent of at least one of the people that the separation be permanent. And so a lot of times clients will come to us and say, well, I’ve been living – we’ve been living in separate bedrooms for the past three years. Does that mean we’re separated? And the answer is no. You have to physically leave the house in order to be separated.
Jaime Davis: What if you live in separate sides of a duplex? Is that good enough?
Carrie Tortora: Interestingly, that has been held not to be sufficient. So, you you literally have to have a different roof from your spouse in order to be separated.
Jaime Davis: OK. But there’s no requirement that there’s any signed document to be legally separated in North Carolina.
Carrie Tortora: Correct.
Jaime Davis: OK. Number two, if you commit adultery, you lose everything. Not true?
Carrie Tortora: That is also not true. While cheating on your spouse may lead to a divorce, it doesn’t necessarily mean that you lose all your rights and the other spouse automatically gets the kids, the house and all the assets. In fact, the only claim to which infidelity is directly relevant is alimony. In North Carolina, in order to be entitled to alimony, there must be a dependent spouse, meaning a spouse who is dependent on the other for his or her financial needs and a supporting spouse, meaning that spouse supports the other spouse and is more or less the breadwinner in the family. If the dependent spouse commits adultery, he or she is barred from receiving alimony. And likewise, if the supporting spouse commits adultery, he or she shall pay alimony. So alimony is slightly punitive with regard to cheating in North Carolina.
Jaime Davis: What happens if both people cheat?
Carrie Tortora: If both people cheat, then their cheating, in essence, crosses out the other and both parties claims for alimony are revived.
Jaime Davis: So at that point it’s really just up to the judge to decide how the adultery may impact the person’s alimony. Is that fair to say?
Carrie Tortora: That’s right. Cheating is also not directly relevant to the division of property. And so just because you cheated or your spouse cheated on you doesn’t mean that you get all of the assets or that he or she gets all of the assets. However, the exception or the caveat to this is that if there is dissipation of marital assets, or other funds otherwise spent on the other party involved in the affair, then that is relevant to the division of assets and debts and can be a factor for the judge to consider.
Jaime Davis: Do you see that very often in your cases that one party or the other may have been going on trips with a girlfriend or boyfriend or buying them gifts? Do you think it comes into play very often?
Carrie Tortora: Yes, absolutely. And that’s why it’s important to have an appropriate document exchange and get all of the credit card and bank statements that you need in order to determine what funds were spent for what we consider to be a non-marital purpose. And so that is something that the judge has the discretion if you are in court to either give a credit to that spouse or to consider it as a factor when dividing the property. As for custody, again, cheating is largely irrelevant unless there is evidence that the extramarital affair has directly impacted the children. And so if it’s a situation where a parent is shirking his or her parental responsibilities to go out and spend time with this other individual, that can be relevant to a custody decision, clearly, if the person with whom the parent is having the affair is unfit to be around the children that also is relevant for custody. But making the argument that the parent who cheated is exercising poor moral judgment or has a lack of moral values and therefore should not have custody of the children, is not going to be a winning one in court.
Jaime Davis: What if a person is meeting random people on the Internet? Let’s say they’re on some sort of, you know, adult meetup site and they truly are just meeting with strangers. Do you think that could impact a custody case?
Carrie Tortora: Absolutely. Well, I should say it will depend. Yes, it can. If the person is meeting up with people and let’s say bringing them into the house, that could expose the children to strangers and all unknown people. And it shows a poor judgment on the parent’s part to be engaging in that sort of potentially risky behavior in the first place. So that is… We’re getting closer to an area that that would be relevant for custody purposes.
Jaime Davis: OK. Is there anything else that we need to say about adultery before we move on?
Carrie Tortora: Nope.
Jaime Davis: OK. Number three, anything you find on your spouse’s electronic devices is fair game? So if I am able to get into my spouse’s telephone and look at their emails, why wouldn’t I be able to use that information?
Carrie Tortora: There are, in fact, rules about what you can and can’t look at. And so, for example, if your spouse has a phone, as in your example, that’s password protected, you’ve not been given the password and have historically not had access to this device, then it’s likely not something that you can legally access without some sort of agreement or a court order in place.
Jaime Davis: So let me stop you right there. So what if it is a telephone that maybe my spouse hasn’t told me the passcode for, but he or she sits beside me all the time and is punching in the little four digit code and I’m able to learn that code just because of the proximity of the person when they’re putting it in. What do you think about that?
Carrie Tortora: That’s a gray area in the law. I think that that would be a question questionable and potentially a judge would need to decide that issue before that evidence was used. However, what we do recommend to clients is, in order to preserve the evidence on the device, we often work with forensic computer experts to make a mirror image of the information and the hard drive or what have you with regard to the electronic device in order to preserve the evidence so that we can look at it later under the appropriate protections and circumstances.
Jaime Davis: So what about computers? What about information found on, let’s say it’s a home computer?
Carrie Tortora: Generally speaking, if it’s a computer that is a quote unquote, family computer, it’s in a common area. Everyone’s been accessing it. Then it’s probably fine to look at information on that computer.
Jaime Davis: What if it is the home computer but the spouse’s email is password protected and I guess the password?
Carrie Tortora: Anytime you get a password you’re getting into an area where it’s likely going to be protected and privileged information.
Jaime Davis: So what happens? What happens if you access information in a manner that you shouldn’t? Are you able to use that information in court?
Carrie Tortora: No, you are not able to use that information in court and you are potentially barred from using any information that you got as a result of the information that you obtained through non-legal means. This is called the “Fruit of the Poisonous Tree Doctrine”. And so we have to be very careful about what information we access because we, number one, don’t want to access anything in an illegal manner, but we also want to make sure that we have adequately preserved the evidence we want to use.
Jaime Davis: So that’s why preservation is so important? That way, later on, we can have a judge decide whether or not we can look at it, but it’s there and it’s safe and we can get to it if we need to?
Carrie Tortora: That’s right. Yeah. There’s nothing illegal about preserving evidence. In fact, it’s required in court cases. But the issue is the access of that information.
Jaime Davis: So along these same lines of, you know, electronic devices, what about recording?
Carrie Tortora: In North Carolina it is what we call one party jurisdiction. And that means that so long as one party consents to the recording of the conversation and it can be the party who’s making the recording, then it’s OK to record.
Jaime Davis: So with that said, the safest course of action would be to what, have an audio recorder on your person and you may record a conversation that you are participating in, but maybe leaving the same sort of recorder just in a room, maybe it’s voice activated probably wouldn’t be permitted. Is that fair to say?
Carrie Tortora: That’s right.
Jaime Davis: OK. Number four, if my ex is not paying child support, I don’t have to let him or her see the kids?
Carrie Tortora: No. That is a myth. Although many clients think they can tie child support payments to visitation privileges, it’s important to understand that these are two independent issues. And so, for example, if you have not received adequate child support payments, you are not entitled to deny your ex-spouse. Visitation with the children. On the flip side, if your ex or the other parent is denying you from seeing the children, you are not entitled to unilaterally suspend your child support payments. There are other mechanisms for enforcing the payment of child support or the custodial privileges. But what we consider to be these self-help remedies is not appropriate.
Jaime Davis: So what do you do? What if you have a spouse who is not paying child support that they’re required to pay pursuant to, let’s say, a court order?
Carrie Tortora: Well, if they’re not paying their child support as ordered, then you would file a motion for contempt and you would ask the judge to order them to pay child support. And contempt is a pretty effective remedy because the judge can potentially throw them in jail for not paying child support. And so it tends to be a pretty good motivator for folks to make their child support payments current.
Jaime Davis: What if you’re in a situation where you’ve never really formalized the child support that you might be entitled to say it’s a new separation or maybe even a relationship where you weren’t married and you and your partner have been getting along for some time, then all of a sudden the support stops, what can a person do in that situation?
Carrie Tortora: There are a couple different options. You can either try to negotiate a child support agreement with the other party, or if you’re unable to reach an agreement on your end, then you would have to file a lawsuit and ask the court to decide. Those are the two mechanisms that we use to resolve not only child support, but the other issues arising from folks’ separation. Another option would be to seek help from child support enforcement, which is an agency through the county that provides services for enforcing and establishing child support.
Jaime Davis: Myth number five: mothers are always awarded custody of the children.
Carrie Tortora: This is not true. And while there used to be an express bias towards mothers, the law is evolving to reflect the changes in our society that both moms and dads are equally capable of caring for the kids. So, the standard is now what is in the best interests of the kids? And this is heavily fact dependent based on the circumstances and facts of each individual case. And so there is no clear bias, or at least no legal bias towards mothers at this point in time.
Jaime Davis: In my experience it seems that most courts start off with the belief that both parents are equally capable of caring for the children unless one of the parents is able to show the court why that’s not the case. And don’t you think that it usually requires some pretty compelling facts?
Carrie Tortora: Yes. And I would say probably in the last 10 years or so, we have shifted from a primary caregiver scenario being the norm to a what we consider 50, 50 or close to a joint physical custody situation where you you do start with the presumption that equal shared time with the parents is in the children’s best interest and then we move off of that presumption.
Jaime Davis: Myth number six: children get to pick where they live. This is one of my favorites.
Carrie Tortora: We have clients ask us about this all the time. And in North Carolina, when children reach a certain age and usually that’s around 12, they can express a preference to the court and the court will consider their wishes. However, they don’t get to pick and the judge is the ultimate decider based on all of the facts and circumstances. In our practice, we avoid having children testify for a variety of reasons, including the negative impact that it can have on the children. It can be a traumatizing situation. As well as the fact that children’s testimony can be unpredictable. We believe, and this has its exceptions and the appropriate case, but oftentimes there are other ways to introduce evidence of the children’s preferences without the children testifying. And that can be through a guardian ad litem or a child’s advocate or even the child’s therapist in some circumstance.
Jaime Davis: Yeah. I think having the children even express their wishes is super risky for a lot of different reasons. Who knows what that child is going to say. At the end of the day, the child is, you know, part both of the parents, right? And so you’re putting the child in a very awkward position if you’re expecting him or her to say something negative about mom or dad, he or she may not be willing to do that. I also think it’s risky because, you know, children are manipulative. They can be. They have their own agendas. And if one parent is less of a disciplinarian, you know, they may want to go live there just because there are less rules. And so it may not be about which parent is in the child’s best interest, but more about where the child can get away with more. So I agree with you. I think trying to get in the child’s wishes in another manner is preferable to having them either speak with the judge or worst case scenario, testify in court.
Carrie Tortora: Yeah, we, even in the most amicable of divorces, we often recommend to our clients that they consider counseling for their children. And this is especially true in those cases where the children seem to be expressing a clear desire to live with one parent or the other. And so that’s a circumstance where we would like for the child to have a voice and to feel like he or she has someone who’s an objective third party who can listen to his or her wishes and the mental health professional is in a better place to sort of parse out the the child’s wishes and what may be the impetus behind the child making these statements.
Jaime Davis: One, actually, two, I just thought of something. In Wake County at least you can also ask for a child advocate to be appointed. That’s actually a lawyer who is advocating for what the child wants, not necessarily what is in the child’s best interest. I know it is possible, like I said, in custody cases in Wake County. I’m not really sure what’s going on in the other counties in that regard, but also an option.
Carrie Tortora: Right. Yeah, certainly. This is like like we said, it’s always preferable to find a third party to come to court if your case is in court to discuss or testify about the child’s wishes as opposed to bring the child into court to go through that experience.
Jaime Davis: Agreed. Myth number 7: moving off of custody and on to equitable distribution, equitable distribution means that you divide each asset and each debt. How is this a myth?
Carrie Tortora: So I’ll get to that, but let me give just a little bit of background information first. Equitable distribution is the division of marital property between separated spouses. And so marital property is anything that you or your spouse acquire from the day you get married until the day you separate. And that can be anything from real estate to cars to household goods and furniture, retirement accounts, stock options and even things such as frequent flyer miles, credit card points and pets. Marital debt is also factored into the mix. And in North Carolina, title doesn’t control. So that means if an asset is held in one spouse’s sole name, it can still be marital property if it was acquired during the marriage. And North Carolina provides that there shall be an equal division of marital property and debt. Unless for some reason, an equal division is not equitable. And there is a laundry list of factors as to why one or the other spouse can ask for an unequal division of property. And so now you get to the split and regardless of the percentage split the goal is not necessarily to divide each thing individually. Instead, we want both spouses to have the same value of property at the end of the day. And so, for example, one spouse may retain the house and the equity that’s in the house while the other spouse gets more of a financial account or a retirement account. So, we we can equalize the division of assets without dividing each individual asset and debt in and of itself.
Jaime Davis: So really you can think about it in terms of an Excel spreadsheet, right, where you have the assets listed down one side, you have a husband column and a wife column, and basically you go down the spreadsheet and put the asset in the column of the person who’s going to get it. And at the end of the day, if the husband’s total doesn’t equal the wife’s total, then a cash payment will need to be made to equalize it if it’s an equal distribution, is that right?
Carrie Tortora: That’s right. That’s a good way of thinking of it.
Jaime Davis: Myth number eight: you should never move out of the marital home.
Carrie Tortora: This is a tricky one. And there is a lot of literature and other anecdotal advice that you should never leave the house. But that’s not always true. And what we recommend instead to our clients is that before you leave, you need to have a plan. And that plan needs to determine the custodial schedule of the children, as well as how the bills are going to get paid. But it’s not true that you need to resolve every aspect of your case prior to getting separated. And in fact, often times it’s easier to engage in the settlement discussions with your spouse when you’re not living in the same house.
Jaime Davis: Along those same lines, you know, a question I often get asked in consultations is about the concept of abandonment. And abandonment is where one spouse leaves without justification and without the consent of the other spouse. What I tell folks is that in most cases, judges understand that in order for a couple to be separated, somebody has to move out. Somebody is going to have to leave the residence. And so the issue of abandonment is normally not that big of a deal. The only form of marital misconduct that will bar a dependent spouse from receiving alimony is adultery. And so moving out of the house is not going to necessarily cut off someone’s alimony claim. I would say, however, that before deciding to move out, that you should consult with a lawyer, as these analysis are very, you know, fact and case specific. And so you want to be sure that you are discussing the facts of your particular case with a lawyer who knows your situation.
Carrie Tortora: Yeah, certainly.
Jaime Davis: Myth number nine: you don’t need a lawyer.
Carrie Tortora: Well, this could be construed as a somewhat self-serving myth, but we believe that it, you know, even in the most amicable divorce situations, it’s always good to at least have a consultation with an attorney to understand your rights and your responsibilities under the law. And so, even if you decide that you would like to do the majority of the negotiations with your spouse yourself, that’s fine. And we encourage that to the extent that it can be a productive conversation. However, again, rather than downloading a form online and trying to draft your own settlement document, it may be good for a lawyer to draft it for you, or at least to have a lawyer review it before you sign something. It’s a lot easier to correct mistakes before they are in a fully executed document. And so we always encourage folks, even if you don’t have a lawyer, to handle your case every step of the way. It’s good to have someone to check in with about, you know, initially to understand the law and to be educated and then throughout the process to make sure that the deal that you’re reaching is consistent with what the law would allow. And then at the end, before you sign anything formal, it would be it’s always advisable to have a lawyer review it first.
Jaime Davis: I agree. Some of those paragraphs in a form separation agreement, they may just look like legalese that really don’t have a whole lot of meaning, but they can have a real impact on your case if you delete something that needs to be in there or you leave something that you’re not exactly sure what it means because you know, you don’t think it applies to your situation. And later on down the road, you’re having to ask a court to help you enforce your agreement. You want to be sure that you fully understand what you have agreed to and what all of those paragraphs mean. And so even if you reach out to a lawyer simply to have them review your document before you sign it. That’s what I would recommend.
Carrie Tortora: Yeah. I mean, a little effort on the front end will save you tons of headache and legal aggravation on the back end. The other thing that we often see in agreements that are drafted by spouses is they might be ambiguous and so they don’t necessarily cover all of the points that they need to. And so when a dispute arises, then you’re left to litigate the terms of this potentially ambiguous document and what each of you intended for those terms to mean. Again, investing in a lawyer now may save you significant attorney fees in the future.
Jaime Davis: Myth number 10: your divorce can be denied if your spouse doesn’t sign the papers.
Carrie Tortora: This is a mess. And in North Carolina, with very few exceptions, as long as you’ve been separated for the requisite year, then a judge will grant your divorce regardless of whether your spouse consents. And also in North Carolina, unlike some other states, you can get divorced while your other claims are still pending. And those claims can be resolved after the divorce. But the divorce and the other claims are as though they are on two different tracks. And so the divorce can sort of proceed and move forward and then all of the other claims can proceed as though the divorce had not happened.
Jaime Davis: Is there any sort of a residency requirement in North Carolina to be eligible for a divorce?
Carrie Tortora: You have to be a resident of the state for six months before you can file an action here. So if you have just moved here and you have been separated for a year, you still couldn’t file for at least six months.
Jaime Davis: That’s good to know. Myth number eleven, most divorce cases go to court.
Carrie Tortora: So we always tell folks that there are two ways to resolve the issues arising from a separation and that can be in court or out of court. We encourage our clients to settle their cases, if at all possible. It’s more cost effective. It’s less taxing from an emotional standpoint and it’s significantly less time consuming. But it takes cooperation, transparency and a willingness to meet in the middle in order to settle a case. And without any of these, then court may be the only option. And so, like I said, we are always prepared for court. But we try to avoid it because of the impact that it can have on our clients.
Jaime Davis: And at the end of the day, when you’re talking about a property case and there are only a finite number of dollars to go around, it doesn’t make sense financially to spend money to go after bad, as I like to say, and deciding how much to spend in legal fees really does need to be part of your analysis in determining whether or not you’re going to accept a certain settlement offer. You know, it may not be your best day in court, but you may still end up with more money than you otherwise would because you would not be spending those additional legal fees.
Carrie Tortora: That’s right. And that’s an important consideration. The cost benefit analysis for the financial claims in your case. The other important consideration when we’re talking about custody is that you always cede control to a judge. When you are in court, a judge who doesn’t know you and doesn’t know your spouse and doesn’t know your children and that judge, you know, has a lot of other cases and can’t give your case the attention that you and your spouse can give it in crafting an agreement that works for your family. And so, again, to the extent possible and that requires cooperation on both sides, which is not always the case, but if it is possible, then we are always discussing settlement options with our clients and having those conversations so that if you find yourself in court, it truly is a court of last resort.
Jaime Davis: Carrie, thank you so much for joining us today. I think this has been a really helpful conversation to help dispel some of these myths that seem to surround separation and divorce. If anyone has questions for you, what is the best way for them to reach you?
Carrie Tortora: My phone number at Gailor Hunt is 919-832-8488 again, 919-832-8488. And our Web site is divorceistough.com. My email address is email@example.com. And thank you so much for having me today.
Jaime Davis: I hope you all enjoyed this episode of A Year and a Day. If you have any suggestions for future episodes, I would love to hear from you. You can email me at firstname.lastname@example.org. As a reminder, while in my role as a lawyer, my job is to give folks legal advice, the purpose of this podcast is not to do that. This podcast is for general informational purposes only and should not be used as legal advice and is specific to the law in North Carolina. If you have questions before you take any action, you should consult with a lawyer who is licensed in your state.