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Legal Separation: What You Need to Know

Legal Separation in North Carolina

key components and the differences from absolute divorce

Many people wonder how the process of legal separation works in North Carolina. Separation in North Carolina occurs on the date that a husband and wife move into separate residences with the intent to continue living apart from one another.

Often, just prior to or during separation, people consult with attorneys about the separation process and they frequently hire attorneys to draft their Separation Agreement and Property Settlement papers. Within these separation agreements people often outline how their property will be divided, how much, if any alimony will be paid, how child custody will be arranged, and what amount of child support will be paid. A separation agreement can contain any one or all of the issues. The only issue pertaining to the end of a marriage that cannot be contained in a separation agreement is the divorce itself. The divorce can be obtained after one year and one day of separation in North Carolina.

Separation agreements are papers, which once signed by both parties involved, are binding as contracts. It is always in your best interests to meet with an attorney to discuss your rights and to make sure that you understand the separation papers before signing them.

Settlement: the most attractive option

North Carolina is fairly unique in allowing parties to keep support, property and custody issues from ever coming into court. In other states, these issues are generally submitted, at a minimum, for court approval at the time of divorce. As already mentioned, except for the absolute divorce which must be done in this state by a judge, all of the remaining four issues can be settled in North Carolina between husband and wife privately. If any of these issues is not settled by private agreement, such issues could be decided by a judge publicly if either spouse initiates and proceeds with litigation.

The vast majority of married partners in North Carolina opt for private settlement regarding custody, support and property division, given that most people can resolve their differences without the intervention of a judge. You should keep this fact in mind, because statistics nationwide predict that more than ninety percent of all couples will negotiate a settlement when they break up their marriage. Such a settlement will usually be embodied in a document, or contract, known in the North Carolina of the 1990s as a “Separation Agreement and Property Settlement.” From the Sample Agreement , you will notice that these contracts usually follow a certain format: an introduction to the parties, some recitals about why the contract is being entered into, separate articles devoted to various topics such as property division, custody and so forth. This is not the only format that can be used, but it is a commonly used format.

In a minority of cases in which litigation had begun but the parties resolved the issues through settlement prior to having a trial, the settlement might also be embodied in a court document known as a “Consent Order.” A consent order is simply the agreement of the parties, signed by both the parties (and sometimes their counsel) and a judge. Consent orders are different from regular court orders, in that a consent order would reflect the terms that you and your spouse work out between you whereas a regular court order would reflect a judge’s rulings on all the issues that have been tried in his or her court.

You might also agree, even though no one had previously initiated litigation, to put all or part of your settlement into a consent order because of some perceived advantage of a court order over a contract in your particular case. For example, a court order — unlike a contract — is enforceable through the court’s contempt powers. There is also a higher standard imposed in North Carolina for modifying custody and child support orders than the standard used for obtaining an initial judicial declaration as to custody and child support. The required showing to modify an existing custody or support order is one of “changed circumstances.” In general, showing changed circumstances can be a difficult burden to meet.

Why settlement is preferable

Settlement is preferable in almost every case for any number of reasons. In almost all cases, resolution through settlement is less costly, less prolonged and less emotionally draining than litigation. The emotional strain of court proceedings is felt, moreover, by each spouse (regardless of who initiated the litigation) and also by the children, by other family members, and by friends and work associates who interact with the litigating spouses. Divorce — even without litigation — is already a major emotional stress on any family. The changes in family living arrangements alone causes temporary adjustment problems for the most sturdy of individuals. Added to such changes is all the uncertainty involved in allocating family financial resources that once went to one intact family unit and must now stretch to meet the needs of two households.

It is, then, little wonder that many families feel crushed by the extra emotional wear and tear of having to deal with court papers, including the burdensome discovery process of sharing written documents and answering written or oral questions, the selection and interviews of potential witnesses, and all the anxiety of formal court proceedings. Litigation is enough of a strain when it doesn’t feel like the whole web of one’s life is falling apart all at once. When one’s concept of who one is and what the future will hold is being altered by separation and divorce, sometimes radically altered, then litigation is almost more than someone can bear.

Another disadvantage to litigation is that the judge, and not either of the contestants, dictates the result. Once your case is litigated, you lose control over the process even when you think you (and your attorney) may be influencing the judge. The outcome of litigation is, moreover, never a real victory for either side. Each side loses from having had to go through adversary proceedings. It’s not only parents who suffer from courtroom proceedings. The children will be traumatized as well, whether or not they ever step foot in the courthouse.

Just as important as minimizing emotional and financial devastation at a time of major personal crisis, settlement can be custom-tailored to a family’s interests and needs in a way that may not occur in the bureaucratic judicial system. That system cannot know your personal priorities and your family’s special customs the same way you and your spouse know those priorities and customs. The judicial system is, on the whole, conservative in fashioning remedies. The system will not provide the kind of creative solutions that you and your spouse might create on your own, provided you both have the stamina necessary for negotiation and the capacity to be flexible. For all these reasons, you want to go to court only as a last resort, when nothing else looks like it will work.

Regardless of whether spouses can settle or they are forced to litigate, the independent nature of custody, support and property issues in North Carolina can drag out the ultimate resolution of all issues arising from separation. For example, custody can and might be resolved in North Carolina — by private agreement or in court — long before any other topics have been dealt with; or, property might be divided long before there are any agreements with respect to custody or support. You will certainly want to consider during the negotiation process whether it makes sense to try to deal with all issues simultaneously, rather than one at a time as North Carolina law allows. In terms of peace of mind, closure and expense, it usually makes the most sense to settle everything at once and as expeditiously as feasible under your individual circumstances.

It is, of course, also often tactically advantageous to settle as many issues as possible all at once. A prime advantage of such a settlement technique is that either husband or wife has the opportunity to “trade” or compromise on items in one subject area (such as custody) for something that spouse wants more in another area (such as property). If, by comparison, all five topics are dealt with at separate times, as North Carolina law permits, “trading” across subject areas is going to be much more limited.

Negotiating successfully

Following just one piece of advice about negotiating may carry you to a satisfactory resolution. That advice is to focus most of your attention on the single issue that is most important to you (rather than allowing yourself to get sidetracked on issues that have only passing or minor emotional significance) and then to be prepared to make concessions on the matter that counts most to your spouse. If however you can see, ahead of time, that your most important issue is also your spouse’s most important issue, and the two of you are in opposite camps over that issue, negotiating may be a waste of time. If, on the other hand, you have figured out what your spouse most wants, and you can find a way to get to that point, that will provide you some leverage in the negotiations in getting what you most want.

Focusing on your single most important priority and your spouse’s highest priority are extremely important tactics that are all too often overlooked in negotiations. Let’s say you are the mother of two teenagers, both of whom hope and plan to go to college. You and your husband quickly drew up and signed a separation agreement and property settlement addressing only property and custody. Both children will reside with you. All the marital property, including the IRAs in your husband’s name, have been equally divided between you and your husband in the written agreement.

You entered into the written agreement, drafted without a lawyer, at a time that both of you foresaw you would have to ask a judge to decide the issue of child support because the two of you had sharp disagreements over that. You drafted the agreement yourselves, covering only custody and property, because you and your husband perceived both of those areas to be simple enough to do on your own. There was simply no contest over custody. You yourself felt especially secure about the property issues, too, because you have always managed the family finances. You were certain that you were not overlooking any marital assets when you tallied everything up. You also believed that all assets had been fairly valued and divided. You and your husband researched sample language for your written agreement in several legal texts; both of you understood your contract would be a binding agreement; and you are both hopeful that there are no major omissions or mistakes in the drafting you did. Thus, you are not really concerned about the future implementation of the custody and property agreement that the two of you have finalized.

You left child support out of your settlement discussions and the written agreement, however, based on your perception of your children’s financial needs and based on a concern that you might not have been able to draft an “air-tight” document concerning support. You believed the children would be entitled to receive monthly support above the Child Support Guidelines, which your husband would not agree to. You were both prepared, in the heat of angry conversations, to litigate the issue. You and your husband never discussed the children’s future college expenses, as the issue of child support was something the two of you did not discuss in any detail once it became clear that you were not going to be able to agree.

Now you have realized that getting your husband to agree to contribute to the children’s college education is much more important to you than having half of his IRAs; and contribution to college education is also now far more important to you than asking a judge to award monthly child support above the Guideline amount, which the judge might refuse to do anyway. You have also now been informed, correctly, that a North Carolina judge lacks the authority to order a parent to pay for college expenses unless the judge is merely enforcing a prior contract entered into between husband and wife. You did not know that earlier, just as you did not recognize earlier that college was a big deal for you.

At this point, you will be able, if at all, to get your husband to agree to contribute to college costs only by re-opening the negotiations that had previously resulted in a written agreement. Your husband may be interested enough in retaining all his IRAs or in getting some other item of property that he would consent to sign a new agreement that obligates him to contribute to college. On the other hand, he has now gotten used to the idea that he has divided the IRAs with you, according to what both of you deemed to be fair, and that he will just let a judge decide about monthly child support. In other words, your husband may no longer be interested in further negotiations with you.

The opportunity you once had for a more comprehensive settlement may be lost. Worse, you may be left with a bargain not as good as the one you might have struck with your husband initially. After enduring the stress (and possible expense, if lawyers were involved) of strenuous negotiations, parties may understandably be very reluctant to return to the bargaining table.

Therefore, you want to know — from the start — exactly where you want to go with the negotiations. You also want to become more informed about some of the skills needed for successful negotiations. You can pick up tips about negotiating from a number of excellent books. An good place to start is with Getting to Yes: Negotiating Agreements Without Giving In by Fisher and Ury. The chapters in that book summarize some important points to keep in mind at all times: Don’t bargain over positions. Separate the people from the problem. Focus on interests, not positions. Invent options for mutual gain. Insist on using objective criteria. Know what to do if the other side is more powerful, or won’t play, or is using dirty tricks.

Negotiating in the face of the breakup of a marriage is a daunting task. The conflict with your spouse can get destructive; negotiations may get seriously out of control; one party may commit too early to something the party can’t or won’t do; and separation distress can be greatly augmented if settlement discussions aren’t mutual efforts to work out practical solutions that make sense for both partners and the children. Many couples cannot go it alone, but need to rely on lawyers or other professionals to smooth the way.

It is, of course, also extremely difficult for each spouse not to become embroiled in the issues that led to marital dissolution, whether or not the spouses enlist outside help for the negotiations. Your very best preparation for negotiations is to get your emotions under control and to inform yourself, as fully as possible, about: (1) what you most need and want, (2) what your spouse most wants, (3) what the law says each of you is entitled to, and (4) what your family income and expenses are now and what your income and expenses will be post-separation. Don’t try to negotiate without getting a handle on this information, whether you are negotiating on your own behalf or you are using someone to negotiate for you. Don’t try to continue negotiations at a juncture at which one, or both, of you has lost objectivity.

Here are some tactics and attitudes to assume, if you do decide to try one-on-one negotiations with your spouse. Negotiate in a neutral place where you feel safe, at a pre-planned time. Break off negotiations immediately if things heat up unconstructively. A good starting point for settlement discussions is for you and your spouse to recognize, and enumerate, all the areas on which you agree.

Then find out more about all the things about which you can’t agree. Try to hear what your spouse has to say, without arguing the points. Try to get your spouse to hear what you have to say, without raising your voice. Be careful not to fence yourself in by indicating some dollar amount that you are offering, or that you are willing to accept. If you offer a dollar amount that you later realize was too high, your spouse’s expectations have been set at the higher amount. If you said you’d take an amount that you subsequently discover is too little to meet your expenses, you will have a devil of a time convincing your spouse to increase the amount. Think about the items of property you are receiving when you and your spouse make guesses about their value; the lower the values on the items you will be receiving, and the higher the value of your spouse’s items, the more items you will get in a 50% division.

Address all the issues, not just some of the issues; look at the facts, not what you or your spouse imagine to be the facts; see if the two of you can create solutions rather than new areas for conflict. At impasses, talk together about what the likely outcome would be if you have to go to court. In order to make these predictions, you both need to know the basic materials presented in this book. You also need to look for points on which to leverage your requests. Such points include secrets that your spouse doesn’t want to make public, or your spouse’s sense of duty or your spouse’s pride in being known to do the right thing.

Remember, statistics predict you will settle the issues that may seem to be impossible to settle. But if you can’t settle under your own power, don’t wear yourself out trying. Just move on to the next step — get help from an attorney or another professional. If that person picks up the negotiations, the discussions may go on for some time. There may be telephone calls, letters, demands/counteroffers, proposed draft agreements, face-to-face meetings, delay. Still, you will most probably settle eventually.