Let’s start at the beginning: You’re married, but have decided that you want to separate from your spouse. One of the first things you need to do is schedule a consultation with an attorney. There are several of good reasons to schedule this consultation as soon as you’ve decided to separate. First, you can start planning ahead. At the consultation the attorney will discuss with you all the issues surrounding your separation and divorce, which will help you make informed decisions that could have serious implications later on in your case. Second, the attorney can give you advice to help your separation go as smoothly as possible. Third, this consultation will give you an impression of the attorney so that you can decide whether he or she is someone you would like to represent you during your separation and divorce.
Once you’ve scheduled the consultation, you need to prepare for your meeting. You will get much more out of your time with the attorney if you go in with a list of questions and issues. The major issues that come up in almost all marital separations are as follows:
1) Child Custody – If you have children, you will need to decide whether you think the children should remain with you or your spouse. Discuss with the attorney what you believe would be the best arrangement, and he or she will evaluate your case and tell you what to expect.
2) Child Support – In North Carolina, both biological parents have an obligation to support the minor children. Therefore, the non-custodial parent (the parent with whom the children do not primarily reside) will have to pay some amount of money to the custodial parent (the parent with whom the children live) for the support and maintenance of the minor children. In North Carolina, as in many other states, child support is calculated according to specific guidelines. Although there are many factors that can determine the amount of child support the non-custodial parent must pay, your attorney can give you a rough estimate if you tell him or her your income, your spouse’s income, health care costs for the children and work-related childcare costs. In some cases, a deviation might be appropriate, be sure to ask.
3) Postseparation Support (“PSS”) – In some cases, postseparation support is paid from the spouse who makes more money (“the supporting spouse”) to the spouse who makes less money (“the dependent spouse”) while the litigation is pending. Postseparation support is primarily based on the needs of the dependent spouse and the ability of the supporting spouse to pay, as stated in N.C.G.S. 50-16.2A. PSS is intended to be a “financial bridge” from living together to living separately.
4) Alimony – Alimony is an issue separate and apart from postseparation support. While postseparation support is based primarily on need and ability to pay, the alimony statute (N.C.G.S. 50-16.3A) lists several factors for the judge to consider. While you must still establish that one spouse is dependent and the other is supporting, other factors, such as infidelity and marital fault, are also important. One of the most complicated questions regarding alimony is how long alimony will be paid. This very much depends on the facts of each marriage.
5) Property division – While property acquired before marriage, acquired by gift or devise during marriage or acquired after separation (regardless of title) is usually the separate property of the spouse who acquired it, marital property must still be divided. In North Carolina, marital property is divided by a process called Equitable Distribution (or “ED”). The ED statute (N.C.G.S. 50-20) lists many factors for the judge to consider in dividing up marital property. The starting point is that marital property is divided 50/50, but in some cases you can successfully ask that the property be divided unequally in your favor. It is often very helpful to make a list of your separate and marital property and take it to your consultation.
6) Divorce – In North Carolina, there are 2 grounds for divorce: (1) Incurable insanity which causes the parties to live separate and apart for 3 years (N.C.G.S. 50-5.1) and (2) separation for a period of one year (N.C.G.S. 50-6). The ground typically used is the second one, separation for one year.
7) Domestic Violence – If there have been any instances of domestic violence, be sure to tell the attorney about them. He or she will advise you on the best way to protect yourself and your children from further harm.
Above I have set out what I consider to be the 7 major issues that are typically discussed in an initial consultation, but this list is by no means exhaustive. If you feel there are other issues that need to be addressed, don’t hesitate to ask the attorney about them. In future posts, I will discuss each of these issues in more detail.