Today I'm going to try something different and, hopefully, fun. I came across a hypothetical a couple weeks ago regarding a couple, two dogs, puppies, and divorce. Lots of interesting issues that all involve equitable distribution. After all, pets are property in North Carolina.
Whether you are anticipating a possible equitable distribution, post-separation support, or alimony action once your separation has commenced, you will need to make sure you have your financial information readily available. Reason being is that this information is going to be required to be produced by a North Carolina court. Even if you intend to resolve all issues through a separation agreement, any competent attorney that is representing you and/or your spouse is going to require that both parties exchange financial information.
A NC Court of Appeals case, Lesh v. Lesh, NC App. (Jan 18), has reaffirmed that military disability pay is income that can be considered for a distributive award when the trial court is looking for a source of payment. However, military pay cannot be distributed by a court in equitable distribution.
If you and your spouse have come to the difficult realization that your marriage is no longer working and there are certain factors that lead you both to the conclusion that a separation is the only rational conclusion to your relationship, then a separation agreement may be the best, most cost-effective resolution to your marriage. Separation agreements are authorized by North Carolina General Statute 52-10 as well as common law.
WHAT IS A SEPARATION AGREEMENT EXACTLY?
A separation agreement is a contract between two spouses that can include as many topics as you and your spouse can agree upon. Most of those topics I've already covered in my family law blog that can be found here and they include child custody, child support, and equitable distribution. Spouses can also include post-separation support and alimony in a separation agreement as well.
WHAT RECOURSE DO I HAVE IF MY SPOUSE BREACHES THE SEPARATION AGREEMENT?
A breach of a separation agreement is the same as breaching any contract made between two parties. The remedy is the same as if party A and party B enter into a contract for services and party B breaches. Party A can file a breach of contract action against party B to recover damages. Same with a separation agreement. If a separation agreement states that spouse A is to pay spouse B $1,000 a month in alimony and spouse A misses a payment or payments, then spouse B can file a breach of contract suit against spouse A for breaching their separation agreement. Keep in mind that the statute of limitations for any breach of contract action is three years from the date of the breach or ten years from the date of the breach if the agreement was signed under seal by both parties.
CAN A JUDGE ENFORCE THE AGREEMENT WITHOUT A PARTY FILING A BREACH OF CONTRACT CLAIM?
Yes, however, the agreement must be incorporated into a court order for a judge to be able to enforce the agreement through contempt. If the parties do not have a specific provision in their separation agreement that states that they both intend to have the separation agreement incorporated into a final divorce order, then most judges will not agree to incorporate it into the final divorce order.
WHAT IF MY SPOUSE WON'T SIGN THE AGREEMENT?
Both parties must voluntarily sign and have their signatures notarized for a separation agreement to be valid. However, there will not be a valid contract if a party signs under duress or is unduly influenced. I highly recommend that parties sit down and come up with an idea of what they will agreed upon in a separation agreement and figure out what areas they may need help with. If both parties are far off in what they want in the separation agreement, then a separation agreement may not be in the cards. However, if both parties have everything worked out except one area (ex. Post-Separation Support), then a separation agreement will still be a an option.
DO I NEED MY SEPARATION "PAPERS" IN ORDER TO BE LEGALLY SEPARATED?
This is a very common question and certainly understandable given what is seen in popular culture, but the answer is no, spouses do not have to actually have anything in writing to be legally separated. That said, I highly recommend having a separation agreement in place so there is proof of when the separation started as well as written proof as to what the parties agreed upon in regards to marital property, custody schedules, etcetera. A spouse starts the separation process when he or she moves from the marital home and intends to be separate and apart from the other spouse and actually does so. I'll go deeper into the elements of an actual divorce action in North Carolina in my next blog post.
In the meantime, check out my child support video posted here. Until we meet again.
If you are going through a separation or divorce with children you may have difficult questions regarding custody. My hope is that this blog post will help alleviate concerns and answer though difficult questions. #morethanlaw #FamilyLaw #ChildCustody #Separation #Divorce
Ever wondered the basics of North Carolina property settlement (Equitable Distribution)? Well, you are in luck because that happens to be the focal point of our blog post today. #morethanlaw #familylaw #equitabledistribution #howdoihangontomystuff #propertysettlement
This is part one of a seven part series regarding the basics of North Carolina Family Law. My name is Nicholas "Nick" Dowgul and I will be guiding you through differing areas of family law in North Carolina. Today we're starting off by discussing North Carolina's Venue and Residency Requirements.
In North Carolina, divorces are heard in what is known as District Court. Each county in North Carolina has its own District Court and the county(ies) where a divorce action may be properly heard is known as the location of venue. A divorce action can be brought in either the county in which the Plaintiff or Defendant Resides.
Divorces in North Carolina are not fault based and a NC divorce has essentially two elements necessary to be proven by a Plaintiff in a divorce action in order for a divorce to be finalized:
- One party must be a North Carolina resident for at least 6 months or more
- At least one party must purposefully intend to be separated from the other and have actually done so for at least a year prior to filing a complaint for divorce
- Keep in mind that the NC appellate court has determined in Mallard v. Mallard that "[t]he words 'separate and apart', as used in G.S. 50-6, mean that there must be both a physical separation and an intention on the part of at least one of the parties to cease the matrimonial cohabitation." This means that the parties cannot cohabitate with each other and be considered separated under NC law. Cohabitate does mean living under the same roof.
NOTE: If a custody action is filed it must be in the county in which the child has resided for the last 6 months or more. That is if the child is a NC resident and jurisdiction has been established in NC under the UCCJEA. More on that here.