This is the first in a series of six posts about family law, including divorce, child custody and support, and equitable divorce. Today’s post is intended to answer questions that clients frequently ask about separation and divorce. But first, a disclaimer: these posts are not intended as a comprehensive discussion of the law about separation and divorce, nor are they intended to list all the information and documents which may be relevant to your case. These posts provide only a summary of the legal principles which apply in typical cases. Your situation may involve legal principles or information which are not specifically mentioned here.
FREQUENTLY ASKED QUESTIONS
- Potential legal claims. When a husband and wife separate, there are a number of potential claims. The most common claims include: (i) custody of children; (ii) support of children; (iii) post-separation support and alimony for a spouse; (iv) equitable distribution of property and debts; and (v) divorce.
- How are the claims resolved? The claims are usually resolved by one of the following procedures:
- Agreement of the parties. Many people prefer to settle their legal and financial issues by mutual agreement. This can occur prior to the filing of a lawsuit or it can also occur after a lawsuit has been filed, but before the case goes to trial. Sometimes claims are settled as the result of agreements made directly between the parties, of negotiations between the lawyers, and/or negations which occur during mediation with a neutral third party (mediation discussed below). All claims (except divorce) can be resolved by agreement. In order to obtain a divorce, it is necessary to file a lawsuit and have a judge enter a judgment of absolute divorce.
- Litigation. Litigation is a dispute resolution process which involves filing pleadings and other documents with the court, engaging in formal discovery proceedings (depositions, request for production of documents, etc.), and ending with a trial before a judge. When there are multiple claims (i.e.: child custody, equitable distribution, etc.) each claim may be handled independently, often requiring multiple hearings before a judge. Sometimes one claim may be resolved by mutual agreement while another must be litigated before a judge.
- Mediation. Mediation is a process in which the parties meet with a neutral third party who attempts to facilitate a negotiated settlement. This process has proven to be successful in many cases. However, if the parties do not reach an agreement the mediator will declare an impasse. The mediator cannot force the parties to agree and does not make a decision for the parties. Mediation for financial claims (i.e. equitable distribution, etc.) is required. Attorneys are present for mediation for financial claims. Mediation for child custody is also required but attorneys do not participate in this mediation. A full-time mediator meets with the parties for child custody mediation and attempts to work with them to make an agreement as to custody and visitation of the parties’ child(ren).
- How long does it take to resolve a claim? The resolution of claims by agreement of the parties can occur at any time, even before the parties separate from each other. Resolution by litigation can take up to a year or longer after filing the lawsuit. The actual time will depend on a variety of factors, including the complexity of the case, the need for appraisals and evaluations, and the court docket. The parties have some control over the amount of time, but often there are factors beyond the control of the parties.
- What documents are executed to conclude a case? If a claim is resolved by litigation, the Judge signs a judgment or order. This document contains findings of fact, conclusions of law, and the actual orders of the court. If the claims are resolved by agreement of the parties, then there are two basic options. The parties may enter into a written contract, frequently a separation agreement or a property settlement agreement, which sets forth the terms of their agreement. Or, the parties can enter into a consent order or consent judgment which is signed by the parties and the judge. A consent order or judgment is not only an agreement of the parties but also an order of the court.
- When claims are resolved is the resolution “permanent” or is it subject to change in the future? It depends. Resolutions concerning custody and support of minor children are never truly final. Agreements of the parties concerning their children or court orders concerning child custody are always subject to review and modification by the court, particularly in the event of changed circumstances after the agreement was made. The resolution of equitable distribution claims are generally “final” and are not subject to modification. Resolution of alimony is not final and is subject to modification in the event of a future change in circumstances.
- What type of expenses are there? In additional to legal fees, there are a variety of expenses which a party might incur in resolving legal claims. The amounts in this paragraph are for illustrative purposes only and are not guarantees. If a lawsuit is filed, the party initiating the litigation will pay a filing fee with the Clerk of Court which is generally $200.00. Pleadings must be served on the other party and service costs typically range from $5.00 to $25.00. If a deposition is taken, there will be an expense for the court reporter which typically ranges from $300.00 to $500.00. If there is a claim for child custody there may be a need for a psychological evaluation which could cost anywhere from $500.00 to $5,000.00. In equitable distribution cases it is frequently necessary to employ experts to appraise the value of assets, including real estate, furniture, and household goods. These costs vary widely. The appraisal of a house may cost $400.00 while the appraisal of a business may cost in excess of $5,000.00.
- Do we really need one lawyer for each of us? It is not ethical for a lawyer to represent two people who have interests which are in actual or potential conflict. In cases of separation and divorce the spouses’ interests are always in either actual or potential conflict. Therefore, we cannot represent both of you. This does not mean that your spouse must have his or her own lawyer.
- What about reconciliation? Sometimes divorce seems like the only solution. Often it is not. After the domestic action has begun you may decide to change your mind and try to work things out. Our policy is to encourage efforts towards reconciliation.
- May the wife change her last name? A wife’s former name may be returned to her as part of the divorce decree. We generally suggest that this be limited to the restoration of the maiden name when there are no children or to the restoration of a former marital name when there are children from the previous marriage. A name change is best requested in the initial divorce complaint.
- How do relations with the opposite sex affect my case? Adultery prior to the date of separation is marital misconduct and could give rise to a claim for alimony. Post-separation adultery is generally irrelevant except to the extent it helps to prove pre-separation adultery or to the extent it effects the best interests of any minor children. However, post-separation adultery will likely be upsetting to your spouse and may affect his or her willingness to reach an agreement with you.
- Do I need a new will? The North Carolina Probate Code invalidates certain provisions of wills which are made prior to divorce. However, following your separation, you certainly need to make a new will. Also, some assets pass to heirs when you die according to documents other than a will. For example, life insurance and beneficiaries listed on bank accounts are controlled solely by those instruments and a will cannot change those distributions. It is highly advisable to review all your insurance policies and financial accounts after separation to properly analyze your estate plan.
- General suggestions: The facts surrounding your marriage, separation, divorce, children, and property are unique. Your well-meaning friends and associates may offer you advice about your case. Frequently, such advice is not accurate and you should be cautious in following it. If you listen to enough people, you will receive very conflicting advice. Sometimes one parent will consciously or unconsciously use the children in an attempt to punish the other parent. Also, parents or other family members attempt to poison a child’s feelings about the other parent. Please do not engage in such destructive behavior and make all efforts to prevent any of your friends or relatives to refrain from such behavior. Do not discuss with anyone the confidential matters which your attorney. Friends often pass this information on to other people and eventually your spouse may find out about it.