Separation Agreements create a “Mutually Acceptable and Durable Agreement.” A separation that leads to divorce should be viewed as a problem-solving process. Think about it as if your house has just burnt down — everyone needs a new place to live, new household items are necessary, many documents have been lost, finances are uncertain, tensions are high, the kids need to be cared for, and everyone is experiencing emotional trauma. It is important to seek professional help during this time of need and Easterling Family Law is prepared to help you put the pieces back together.
During the year separation, or even before the parties separate, a separation agreement can be finalized. This process can be handled outside of court, or filed with the court. The separation agreement will address the following issues if, they apply:
- Child custody
- Child support
- Post-separation support
- Equitable distribution of property
- Interim distribution of property
At Easterling Family Law, we help our clients make “good decisions” rather than “fast decisions” by slowing down and gathering all of the financial documents needed to understand the entire marital estate. It is critical to us that we educate our clients on their financial history and future, while dealing with the emotions that are tied to this. Significant discussion and negotiation must occur to complete a separation agreement. Clients must understand the division of assets and liabilities and any support, maintenance, custody, or visitation issues.
There are many factors that the court considers when determining whether or not a spouse is entitled to an award of alimony. Those that have been in long-term marriages in which one spouse is dependent on the other spouse for their financial stability, should seek alimony. The court exercises its discretion in determining the amount, duration, and manner of payment of alimony. The duration of the alimony may be for a specified or indefinite term. In determining the amount, duration, and manner of payment of alimony, the court considers all relevant factors, including:
- The marital misconduct of either of the spouses, including incidents of post date-of-separation marital misconduct as corroborating evidence to support that marital misconduct occurred during the marriage and prior to date of separation;
- The relative earnings and earning capacities of the spouses;
- The ages and the physical, mental, and emotional conditions of the spouses;
- The amount and sources of earned and unearned income of both spouses;
- The duration of the marriage;
- The contribution by one spouse to the education, training, or increased earning power of the other spouse;
- The extent to which the earning power, expenses, or financial obligations of a spouse will be affected by being the primary caretaker of a minor child;
- The standard of living of the spouses established during the marriage;
- The relative education of the spouses and the time necessary to acquire sufficient education or training to enable the spouse seeking alimony to find employment to meet his or her reasonable economic needs;
- The relative assets and liabilities of the spouses and the relative debt service requirements of the spouses, including legal obligations of support;
- The property brought to the marriage by either spouse;
- The contribution of a spouse as homemaker;
- The relative needs of the spouses;
- The federal, State, and local tax ramifications of the alimony award;
- Any other factor relating to the economic circumstances of the parties that the court finds to be just and proper; and,
- The fact that income received by either party was previously considered by the court in determining the value of a marital or divisible asset in an equitable distribution of the parties’ marital or divisible property.
The division of property in a North Carolina divorce can be an incredibly complex process. As an “equitable distribution” state, all assets classified as marital property are subject to a fair split, and ‘equitable’ does not always mean ‘equal.’ The intention is to make the division as fair as possible, but fairness depends on several circumstances.
There are three ways in which assets and debts in a divorce are classified:
- Marital property: All property and liabilities acquired during the marriage are classified as marital assets. Unless stated otherwise at the time of giving, gifts between spouses are considered marital property, too.
- Separate property: All assets or debts acquired BEFORE the marriage and any gifts or inheritances bestowed on one spouse by a third party during the marriage are classified as separate property. Any property identified as separate will not be divided or shared.
- Divisible property: This comparatively limited category includes property acquired after separation due to acts or accomplishments during the marriage. Examples include commissions or bonuses earned during the marriage, but awarded after the spouses separated.
Although the presumption exists that a 50-50 split of marital assets is equitable North Carolina courts often determine that a more lopsided ratio is equitable. Factors the court takes into account include:
- Each spouse’s income
- Length of the marriage
- Health and age of each spouse
- Any support obligations from a previous marriage
- Any contributions made by one spouse to advance the career or education of the other
- Any retirement benefits or pensions that are not subject to distribution, such as Social Security benefits or military disability payments
- Tax consequences
- Other relevant factors
It is important to remember that there is no automatic right to equitable distribution of assets when a couple divorces. The rights must be specifically asserted by one or both parties BEFORE the divorce takes place. If a claim is not pending at the time of the divorce, the equitable distribution may NOT be pursued later. If two parties come to their agreement on marital property division, they are legally permitted to avoid a court-ordered distribution. The couple may draw up a separation or property agreement that distributes assets and debts in a manner that they find acceptable.
Separation Agreement Paths
- Two attorneys and a mediator are involved
- Recommended use: moderate to high conflict – the parties hope to agree to all of the terms of the divorce, but may need significant help and guidance from attorneys and a neutral mediator to do so
- Many times the negotiation is played with a high vs. low game that can increase the time and cost of the process.
- Effect on co-parenting: Good mediators help the parties consciously make decisions that will facilitate their ability to co-parent later. Mediation encourages healthy communication between the couple.
- Control: The parties make all of their choices related to the divorce with the advice of counsel and input from the mediator.
- In mediation, attorneys advise the parties of what they can get in mediation versus what they may get in court.
- Timing: In mediation, some of the time-consuming steps of trial are avoided which streamlines the process.
- Two attorneys, a neutral mental health professional, and often, a neutral financial profressional are involved.
- Recommended use: low and high conflict parties can benefit from this path. The parties and their attorneys sign a contract committing to agree to all of the terms of divorce without resorting to litigation. The parties receive guidance and support from other neutral professionals. This option is efficient and holistic.
- Effect on Co-parenting: The collaborative team helps the parties consciously make decisions that will facilitate their ability to communicate effectively and co-parent in the future.
- Control: The parties make all of the decisions related to the divorce with the advice of legal counsel and other neutral professionals.
- Timing: The divorce process is streamlined because all discovery is focused, voluntary, and informal.
If the parties cannot come to an agreement outside of court, then one person may file a Complaint with the Court to begin the process. Once the Complaint has been filed, many families revisit the options listed above to attempt to settle the issues of:
- Equitable Distribution of Property
- Post Separation Support
- Child Custody
- Child Support
If the parties are unable to come up with an Agreement or a Consent Order then the issues must be litigated.
Contested, Litigated Trial
- At least two attorneys are involved
- Recommended use: This is only the best option in rare circumstances
- One or both parties cannot make reasonable decisions for themselves
- Effect on Co-parenting: This is an adversarial path and can leave the parties entirely unable to communicate civilly with each other
- Control: The Judge makes all of the decisions and imposes them on the parties with an Order
- Timing: The length varies widely, but can take several years. It is almost always slower than other options.
Because divorce can contain a strong element of financial risk, it is important to have an experienced family law attorney advocate for you and safeguard your interests.
At Easterling Family Law, we will work to help you retain the property you are entitled to and that which you may need to build a positive new future for yourself.