Divorce & Separation

Overview

At Smith Debnam, we understand the uncertainty and discomfort a client may feel when facing a separation and divorce. We will carefully listen and learn all we can about your unique situation in order to formulate solutions to help you accomplish your goals. Our divorce attorneys are focused on helping you move forward – legally, financially and emotionally.  Our responsible and caring team is here to help you navigate through this challenging time.

Do I need a lawyer?

It is in a person’s best interests to hire an attorney for his or her case, one who is committed to not only educating him or her about rights and obligations, but who is also there to serve as an advocate. A good attorney knows the law inside and out and stays current on updates that may affect the case. A good attorney also knows important deadlines and the proper procedure for filing documents at the court. Many attorneys have good relationships with judges and other attorneys, who can often help an individual’s case.

What are the consequences of marital misconduct?

Marital misconduct can be considered when determining amount or duration of alimony or as a basis for a court-ordered separation.

What can I expect throughout the process?

When a person contacts Smith Debnam for help with a family law issue, he or she first speaks with a knowledgeable paralegal who will ask some questions about the case and can schedule a consultation with one of our attorneys. The consultation is an important step in the process. It gives the client an opportunity to ask detailed questions and evaluate if the attorney is a good fit for his or her case. When clients come in for the initial consultation, they need to bring any documents that are relevant to the matter. For example, clients should bring previous agreements or court pleadings that the attorney will need to review to advise them correctly. If they are coming in for a consultation to begin the separation process, clients should bring documents evidencing marital debts and assets. Once an individual chooses to retain the attorney for his or her case, that client is assigned a paralegal to walk them through the process. That paralegal will assist the client with preparing the documents necessary for the court process, or work with him or her to gather documents necessary to negotiate settlement documents. The paralegal will also be in regular contact regarding approaching deadlines. The attorney educates clients about their rights and obligations and sets goals and milestones based on specific situations. Being honest about all the details of the case from the beginning is essential to the process. We want all of our clients to feel comfortable with our attorneys and trust that they will guide them in the right direction and help make responsible decisions for each family.

What if my spouse had an affair?

Extramarital affairs can be considered a form of marital misconduct, which may affect the amount or duration of alimony that a person pays or receives. Sometimes, when extramarital affairs are an issue, lawsuits for alienation of affection and criminal conversation can arise. An attorney can help evaluate whether these actions are appropriate for a specific situation.

What if I don’t want a divorce?

If one spouse desires a divorce, the spouses are separated for the required amount of time and the spouse initiating the divorce proceeding does so in the proper way, the spouse who wants the divorce is entitled to it, and a court will grant the divorce.

What do I do when my spouse files for divorce?

A spouse who is served with divorce papers should contact an attorney immediately. There are deadlines to respond to a lawsuit and important rights that can be lost if action is not taken quickly.

What does a divorce cost?

In North Carolina, there is a filing fee payable to the clerk of court in the county in which the action is being filed to initiate the lawsuit for a divorce. Additionally, there is a fee for service or actual delivery of the lawsuit to the opposing party. Service is typically accomplished by certified mail or by sheriff, and those costs vary. The filing fee for a claim for absolute divorce is $225.00 The service fee for the sheriff’s office is $30.00 Certified mail varies in cost, but it is typically $4.00 – $6.00 If a person chooses to hire an attorney to handle his or her divorce, that attorney will charge a reasonable fee for the time spent to draft the necessary documentation to complete the divorce and to appear in court on his or her client’s behalf, if necessary. The best way to get an estimate for the total cost of a divorce is to set up an initial consultation with an attorney to review the details of the case.

How long does a divorce take?

It often takes longer than a client believes it should to get a divorce. The actual dissolution of a marriage can generally take as little as 45 – 60 days, but resolving other issues regarding child custody, child support, alimony and/or property division can take months to conclude, if not longer.

Can I get an annulment?

North Carolina recognizes limited grounds for annulment such as cases of bigamy or when one party to the marriage is not of legal age to marry. There are few other grounds, and an attorney can help advise whether a particular situation qualifies for annulment.

How do I get a divorce in North Carolina?

Once a couple has been separated for one year, either spouse may file a lawsuit asking the court to dissolve the marriage. However, handling the other issues surrounding the divorce including child custody, child support, alimony and/or property division may not be as simple. Assuming all of the other issues are resolved, obtaining a divorce is a relatively simple process.

What if my spouse won’t agree to separate?

If a spouse will not agree to separate, the other spouse may have several options. In some instances, it may be advisable for the spouse desiring a separation to make the first move and actually leave the marital residence to begin the period of separation. Depending upon the specific facts, other options may be available. Every option carries with it some level of risk, whether legal and/or financial. For that reason, it is always advisable to seek the legal counsel of an attorney regarding the rights, risks and obligations triggered by a separation before deciding to initiate a separation.

What if my spouse abandoned me?

Abandonment is defined as one spouse’s leaving the marriage without the consent of the other spouse, without justification and with the intention of ending the marriage. Because abandonment is considered a form of marital misconduct, it can affect the amount of alimony one may receive or pay, as well as the term of alimony.

Can I draft my own separation agreement?

On occasion, individuals do draft their own separation agreements; however, using another person’s agreement as a template or finding a sample online to draft a separation agreement may not result in the desired outcome. Additionally, each state has specific laws regarding separation and divorce; therefore, an agreement drafted under the laws of another state is likely useless for a North Carolina resident.

What is a separation agreement?

A separation agreement is a private, written contract between separated spouses that can resolve most, if not all, of the issues surrounding their separation and divorce. Separation agreements can include specific and detailed provisions regarding child custody, child support, alimony and property division, among other things.

How long do I have to be separated before I can file for a divorce in North Carolina?

A married couple must be separated for at least one year before either spouse can file for the divorce.

What is legal separation?

A husband and a wife become separated only when they begin living apart from each other, in different residences, with at least one of the spouses intending for the separation to be permanent, and the separation remains permanent. A couple, by their actions, can resume their marital relationship following a separation. In that event, their original date of separation no longer applies. The date of separation is important for at least two reasons: 1. It starts the clock running on the one-year waiting period that is required for filing a divorce. 2. It is the date upon which the marital property and debts are valued for the purpose of being divided.

What is marital misconduct?

Marital misconduct can include certain acts that occur during the marriage, such as infidelity, abandonment, cruel treatment, verbal or physical abuse, reckless spending or excessive use of drugs or alcohol, among other things.

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