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Divorce: Things to Consider Before Separation

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Before you make the decision to leave your marriage, be prepared and consider the following:

What property will be considered marital property and what property will be considered separate property?

As a general rule, property that is acquired during marriage by one or both spouses may be defined as marital property. The value of such property is assessed as of the date of separation and usually divided equally between the parties.

As a general rule, property owned by either party prior to marriage is that party’s separate property, provided that it is not later gifted to the marriage. The party that has acquired separate property will usually keep that property as his or her own separate property.

Divorce: Things to Consider Before Separation

The Cheating Spouse

Whether you were cheated on by your spouse or you were the one who cheated, there is some very important information that you need to know before you decide to leave the marriage.

  • If the court finds that the dependent spouse participated in an act of illicit sexual behavior, as defined in G.S. 50-16.1A(3)a., during the marriage and prior to or on the date of separation, the court shall not award alimony.
  • If the court finds that the supporting spouse participated in an act of illicit sexual behavior, as defined in G.S. 50-16.1A(3)a., during the marriage and prior to or on the date of separation, then the court shall order that alimony be paid to a dependent spouse.
  • If the court finds that the dependent and the supporting spouse each participated in an act of illicit sexual behavior during the marriage and prior to or on the date of separation, then alimony shall be denied or awarded in the discretion of the court after consideration of all of the circumstances. Any act of illicit sexual behavior by either party that has been condoned by the other party shall not be considered by the court.

If you suspect cheating, you should consider hiring a private investigator. The immediate reaction of most people is to confront the cheating spouse in a fit of rage and leave. Try to be patient during this time and gather evidence that will prove helpful later either in negotiations or in court.

Gather Financial Information

The number of times a client comes to me not knowing any basic financial information is shocking. At a minimum, you should know or have access to the following:

  • A list of joint and individual bank accounts, with account numbers, for both you and your spouse.
  • The last 3 years of tax returns
  • Income information including bonuses and commissions
  • 401(k) and other retirement fund information, including bank name and account numbers
  • Real property information: closing statements, appraisals, down payment and mortgage information, current value, etc.
  • Investment information, including account numbers
  • Loan information, including account numbers
  • Evidence of any other sources of income

Child Custody

Physical Custody: This is the term used to describe when a child lives with a parent. Get a calendar and go through each month blocking off time that you want and time that you will allow for the other parent to have overnights with the children. Be reasonable and fair. You should do this for each month of an entire year. This is the best way to get a realistic view of what a custody schedule will look like. Be sure to include time for summer vacations and special custody time for holidays. Once you are done, you should count up the number of overnights that you allotted to yourself and the number of overnights you allotted to the other parent. Write those numbers down as they will be relevant for child support purposes.

Legal Custody: Who will make important decisions for the minor children? Legal custody is the ability of the parties to make important decisions for the children. In a perfect world, both parents should be allowed to make decisions for their children, such as what religion to follow, what schools to attend, what type medical care they receive, etc. But, what happens when parents cannot agree? This situation is often referred to as “agree to agree.” Unfortunately, when a custody order or agreement does not have a “tie breaker” rule, the parents are left wondering what to do. This should be well thought-out in advance. Many well-written orders will separate certain issues for one parent to have the final say, and other issues for the other parent to have the final say. Other orders may include a clause that requires the parties to mediate the issue prior to filing a motion with the court. Any of these methods are good ways to handle legal custody. Avoiding the “agree to agree” clause is imperative in deciding legal custody.

Child Support

North Carolina General Statutes Section 50-13.4 is the relevant law regarding child support in North Carolina. Many factors are considered in a child support calculation. The basic factors in determining the amount of child support generally depend on the number of qualifying minor children, the gross income of both parents, the custody arrangement, and the cost of health insurance premiums and child care expenses for the children.

The gross income of each parent is used in calculating child support. Gross income is all income from any source. Generally, this includes your salary, wages, bonuses and commissions from your job, as well as any pension or severance pay. You also need to know the number of overnights you will have with your children during a one-year period. There are several different worksheets that can be used to calculate child support, depending upon your situation.

If one parent has primary custody, meaning the child lives with only one parent for at least 243 nights during the year, you would use Worksheet A, which can be found here.

Worksheet B should be used if parents have shared or joint custody where the child lives with each parent at least 123 nights during the year. Worksheet B can be found here.

Worksheet C should be used for split custody, which is where there is more than one qualifying minor child and the parents divide the children between them, meaning one parent takes one or more of the children and the other parent takes the remaining children. Worksheet C can be found here.

These online worksheets automatically calculate a support payment for you. Once you determine which worksheet is the most appropriate for your situation, you can enter the relevant information to get an estimate of what a child support order will look like in your situation.

One Year Separation/Divorce

ADVICE: Don’t Plan a Wedding Around It!!!

Oftentimes spouses who separate are eager to get remarried. I’ve had many clients tell me that they have set a wedding date for one year after their date of separation. In North Carolina, a complaint for absolute divorce may be filed no sooner than one day after the one year of separation expires. The North Carolina Rules of Civil Procedure must also be followed, requiring the opposing party to be served with the summons and complaint and allowing the opposing party time to answer. Further, the amount of time it takes to obtain a final divorce decree or judgment of divorce depends on the amount of backlog in the county in which the complaint is filed.

A better way to look at the requirement of the one-year separation is to say that you can start the divorce process after the year expires, NOT that you can be divorced after one year.