This content was created in partnership with James, McElroy & Diehl, P.A.
Nobody likes to talk about the dreaded “D” word. It’s painful, messy, and definitely not what you had in mind when you said “I do.”
I got divorced almost three years ago.
When I found myself separated from my then-husband, I knew very little about the divorce process in Mecklenburg County or North Carolina.
Despite my ignorance to the process and not having many people to turn to for advice, my divorce went as smoothly as anyone could hope for. We didn’t have kids. We didn’t own property. We agreed to settlement terms very quickly. All around pretty amicable.
Although my divorce wasn’t catastrophic, there’s still a lot I wish I had known.
If you’re considering getting a divorce or currently in the process, here are 12 things you need to know:
(1) Don’t leave the house without talking to a lawyer.
It’s helpful to set up a consultation before you make any moves to make sure you’re going about the process in a way that protects you and your children.
“You need to meet with your lawyer and devise a plan before leaving.” says Feit, who’s worked as a family law attorney for over 18 years. “Otherwise, if you leave the house, you may not be able to return to the home. Who leaves the house and who stays in the house may also have financial implications and custody implications. The bottom line is that one of the first decisions you make can significantly impact your case.” I did not know this.
“The one exception is domestic violence,” says Mitchell. “If you are a victim of abuse, get out. Assuming a safe environment, don’t leave home without one of us.”
(2) Do your homework before your initial consultation.
As you probably know, lawyers cost money so you’ll want to use your time wisely in your initial meeting. Pull together information about your finances (monthly budgets, savings, real property, assets, debts, etc.) just to give the lawyer an overview of your situation.
In some cases, you may not have access to all the finances, and Feit says that’s okay. Just pull together what you know and they can take it from there.
(3) Don’t trust everything you find on the internet.
“We live in a day and age when you can download forms off the internet,” says Feit. “Beware. There are likely laws or local rules unique to your jurisdiction that the creator of the online form has not considered.”
Trying to cut corners can actually end up costing you more money and more time.
(4) You and your spouse must be separated for a full year in North Carolina before you can get divorced.
This is different from other states. While there is often no official documentation, the separation starts when one spouse moves out. You will then have to wait a full calendar year to file for divorce.
However, Feit pointed out that during that 12-month period, you can work with your lawyer to resolve the more complicated issues. “The waiting period to file for divorce is often used to reach agreements on custody, support, and the distribution of assets.”
(5) Either you or your spouse must have lived in North Carolina for at least 6 months before you can file for divorce.
This one is pretty cut and dry. It’s a requirement for the State to have jurisdiction.
(6) There are multiple ways to navigate the divorce process.
The most amicable way is through mediation. “During the mediation process, you, your lawyer, your spouse, and your spouse’s lawyer work with a third-party neutral to negotiate the issues specific to your case. The goal is to compromise and to hopefully prepare an agreement that memorializes a resolution on matters that can include child custody, child support, spousal support, and equitable distribution.” says Mitchell. “This happens outside of the courtroom and sometimes it can be done in as little as one day.” Feit and Mitchell estimate about 80% of couples settle in mediation.
Litigation occurs when you and your spouse can’t agree on the terms of a settlement. This means going to court and letting a judge decide. “Litigation takes time and it’s much messier,” says Feit. “If you can sort things out in mediation, it’s much less difficult and much less expensive.”
One thing to keep in mind about litigation is that all filings are public record and all hearings are open proceedings. This means less privacy.
Arbitration is another option for people who want to avoid the less appealing aspects of court. Basically, you pay an arbitrator to be a stand-in for a judge. “It’s a little less formal and you get to select the person making the ultimate decision,” says Mitchell. “The downside is the cost but, in exchange, you get the upside of more privacy and, in most cases, a faster resolution.”
Some couples are also now opting for what JMD calls a collaborative divorce process. This means you sign a contract at the outset of your case agreeing to special rules, including a promise not to litigate.
(7) Just because you earned it, doesn’t mean you get to keep all of it.
“When it comes to dividing up marital property, I have a lot of people that meet with me and mistakenly believe, ‘I earned it, so I should get to keep it,'” says Feit. “Like it or not, that is not how the law works in North Carolina.” The equitable distribution of marital property is a presumptive 50-50 division. Who earned it doesn’t rule the day, but how you divide it can be complicated and strategic.
(8) Child custody agreements are not one-size-fits-all.
There’s a lot to consider when it comes to child custody agreements and you’ll need to create one that works best for your particular situation. Schedules can involve both parents sharing custody or one parent having primary custody with the other parent exercising visitation.
There are several factors at play: age, health concerns, special needs, school locations, work schedules, and the individual personalities of the child or children involved. For this reason, you can have any number of variations. In addition, it is important to remember that custody schedules may be modified as circumstances change.
One thing both lawyers strongly advise against is involving your kids in the back and forth. Don’t talk to your kids about the custody case. “Shelter them from the process and communicate a unified message from both parents,” says Mitchell.
(9) If you’re the dependent spouse and you commit adultery, you waive your right to alimony.
That’s right. If you cheat on your spouse and you are dependent, you probably won’t get alimony (unless the supporting spouse cheated too).
By the way, alimony is different than child support. Alimony is support paid for the benefit of the spouse. Unlike child support, there is no formula for determining the amount of alimony or the duration of the payments. Instead, the award is based on the dependent spouse’s reasonable needs and expenses.
(10) When your divorce is finalized, you typically do not have to be present in court if you live in Mecklenburg County.
“This process is administrative,” says Feit. Once the correct paperwork is filed, you pretty much just have to wait for a judge to sign off on it.
Even if you’re not married and contemplating a divorce, here are some other takeaways from my conversation with the lawyers at JMD:
(11) If you sleep with a married person, his or her spouse can sue you in North Carolina.
According to Feit and Mitchell, criminal conversation is a strict liability civil tort. It doesn’t matter if the person you slept with concealed the marriage. The aggrieved spouse can still sue you.
In addition, alienation of affection, another civil tort that has been abolished in most jurisdictions, is still alive and well in North Carolina. You can be sued for alienating your married friend, family member, or secret lover from his or her spouse.
This seemed crazy to me but I asked Feit how common it was and he said he typically has approximately 5-7 active alienation of affection/criminal conversation cases at a time. Wild.
(12) Premarital agreements (or prenups) can help you out in the long run.
Nobody wants to think about the possibility of divorce prior to marriage but premarital agreements can seriously help protect you if you do end the relationship down the road.
After reading all this, it’s something to consider.
Have more divorce questions? James, McElroy & Diehl can help.
(This content was created in partnership with James, McElroy & Diehl, P.A.)
The articles on this website are for informational purposes only and do not constitute legal advice. We hope that you will find the articles informative; however, you should contact an attorney to obtain advice with respect to any specific legal issue or problem, and should not act based upon the information contained in these articles.