You have probably heard the phrase “legally separated” before and wondered: What does it mean? Why is it important? Simply put: to be considered separated in North Carolina, you must be living physically separate and apart from your spouse, and one of you must have the intent to remain living separately from your spouse.
Once you have been separated for one full year, you can file for divorce. This required separation is meant to help both parties slowly transition to life on their own and ensure that they want it permanently.
Typically, the actual divorce part is simple. Making decisions about property, child custody, child support, and spousal support are the bigger issues. These issues can all be addressed and hopefully resolved before you are even eligible to file for your divorce. Once you and your spouse have decided to separate, many people resolve their issues by entering into a Separation Agreement or by filing a legal action.
For some couples, separation is the first step toward an eventual divorce. For others, it is a useful pause that helps the couple reevaluate the challenges in their marriage so that they can make adjustments. Whatever your goal, the attorneys at Kenny & Lowry, P.L.L.C. can help you establish your separation and resolve your other family law issues.
Switching from one home to two can be a stressful aspect of the separation period — you and your spouse must decide who will reside in your current home and who will move out, and how to handle your new financial reality and the sharing of expenses. Post-separation support, like alimony, can be used to formally establish your financial plans during the separation period.
Couples with children must also decide how to divide parenting responsibilities during this period. Where will the children live, and on what schedule? Who will take the lead in making decisions about their health, education and other issues? How will each parent contribute financially to the children’s needs and well-being?
When it comes to separation and divorce, the most important distinction is whether both spouses agree to the separation in the first place. The process can go smoothly when both spouses are willing participants open to compromise. In a contested separation, on the other hand, the process takes longer and usually requires the filing of a court action.
In North Carolina you must live physically separate and apart for one (1) year, before you can file for Absolute Divorce, however, from the moment you and your spouse decide to separate, whether it is a mutual decision or not, you can and should begin to address the fine details of separating your lives, which, depending on the make-up of your family, includes:
This initial separation process can be addressed outside of the court system, through a Separation Agreement, which is a contract between spouses, that can address a division of your property and finances, spousal support, and can include a detailed child custody schedule and child support provisions.
Having an Agreement in place helps a family transition into two (2) households and is usually what people think of as “legal separation”. These initial issues can also be addressed through the court system, by the filing of a lawsuit that includes claims for child custody, child support, postseparation support, alimony, and equitable distribution. The experienced attorneys at Kenny & Lowry, PLLC in Gastonia can evaluate your situation and recommend the best avenue for you to successfully address these issues related to your family, your separation, and upcoming divorce.
Whether your initial separation issues are addressed through a contract or through a lawsuit, the most successful Agreements and Orders are those that are reached by a meeting of the minds and a mutual agreement. The more contested a separation is the more difficult and lengthier the process can become.
One or both spouses each individually meet with an attorney of their choosing (spouses cannot meet with the same attorney) to outline the issues that need to be addressed. The spouses discuss the terms directly and then the detailed and comprehensive Separation Agreement is drafted and each party must sign with a Notary Public—a contract between spouses must always be signed and notarized. In some cases, spouses are even able to work out the terms of their Separation Agreement and have it signed and notarized before they ever physically separate.
If the situation is more contested, the terms of an Agreement can be negotiated through each party’s attorney, instead of the spouses discussing the terms directly.
The out of court Agreement route may be appropriate if you are going through an amicable separation, a contested separation, or desire to keep the details of your separation more private, as an Agreement is usually not made a part of the public record, like it is through the filing of a lawsuit.
A lawsuit is initiated by the filing of a Complaint and outlines the claims or issues that you want the Court to address. After the filing of the Complaint by the Plaintiff spouse, the Defendant spouse is served with notification of the lawsuit, and the Defendant spouse will then file an Answer and a Counterclaim. The lawsuit path includes requirements for court hearings, mediations, and trial. Even after the filing of a lawsuit, terms can still be settled by mutual agreement through a Memorandum of Judgment/Order or a Consent Order, documents that provide the detailed terms that are agreed to by the spouses and their attorneys, signed by the spouses and their attorneys, signed by a Judge, and then filed with the Court.
The Court and Attorneys acknowledge and agree that the most successful separation and especially co-parenting terms are reached by each party being a part of the discussion and reaching a compromise that reflects a mutual meeting of the minds. That is not to say that the attorneys of Kenny & Lowry, PLLC will not fight zealously and aggressively to assist you in reaching a final resolution.
If you are a spouse who does not have access to or know all the details of the marital estate, the attorneys at Kenny & Lowry, PLLC will assist and guide you through the process of discovery to identify all assets and debts and ensure that they have been disclosed and properly addressed, which not only brings peace of mind, but can also prevent unwanted future financial concerns.
As difficult as it may seem in the beginning, immediately addressing the issues of dividing property, debts, finances, establishing support amounts, and determining a custody schedule as soon as you separate, is the best thing to do. It is much easier to address these issues while the knowledge is fresh and the records accessible than it is to piece things together in the future. Not only is the process easier (even when it is a difficult case), but the peace of mind it will bring is priceless.
At Kenny & Lowry, P.L.L.C., we will help you set up a separation arrangement that meets your needs. Contact us online or call 704-861-9199 to schedule an initial consultation in our Gastonia office.
117 East Main Avenue
Gastonia, NC 28052