Do you really have to talk to a lawyer before you get a divorce? What can an attorney tell me about divorce, that I can’t already find on the internet or in books? Are Child Custody,Support, Alimony and Property Distribution included in a divorce?
Raleigh divorce lawyer Lee Rosen answers these questions.
What Everybody Ought to Know About Divorce Transcript
Hi, I’m Lee Rosen, and I want to welcome you to this presentation on divorce law in North Carolina.
This segment focuses on an overview of all the other segments that we have available on our website. It’s important for you to watch this segment so that you’ll really understand the context of the other issues that you’re going to be paying attention to as you go through each part of our site.
Before I get into this overview, I want you to know that you really ought to talk to a lawyer about these issues directly, one on one. It’s great that you’re coming here to gather this information, but so much of what we can tell you is general, it has to apply to a lot of people. You have specific issues and concerns that you need objective independent feedback about. It does not make sense to go through this process without help from a lawyer.
I find that some people are afraid to take that step, and it is a big step. Talking to a lawyer is a very big, forward movement toward ending a marriage. A lot of people think, “Gosh, I don’t want to talk to a lawyer because once I’ve done that, there’s no going back.”
Well, I really think that’s the wrong way to look at it. You ought to talk to a lawyer before you take any big steps because if you’re going to make big decisions in your life, what you need is information. Knowledge really is power, and if you’re going to make good decisions, you need to know what’s going to happen. We don’t do anything else in a major way in our lives without knowing, what does it cost? What will it be like? What will I have to go through to make it happen?
This is one of those things where I see a lot of people tempted to do it based on advice of friends or neighbors, and without the advice of someone that really knows. So I strongly encourage you to sit down with somebody, a lawyer who does this day in, day out. This is all that they think about and focus on and make sure you’re getting solid answers to your questions.
In this state we have a process where lawyers are certified by the state bar as specialists, and you want to be sure that you’re talking to a Board Certified Family Law Specialist. You don’t want to talk to somebody who dabbles in family law, somebody who in the morning is doing a speeding ticket and in the afternoon they’re dealing with a car wreck, and the next day they’re dealing with a contract dispute between businesses.
What you want is a Board Certified Family Law Specialist who does nothing but the kind of case that you have. That’s what will really make a difference in terms of the quality of your representation.
Now, you’re going to have an opportunity to learn about five issues: child custody, child support, alimony, property distribution, and divorce. We treat each one of those issues independently because they are legally independent in this state. Each issue has its own set of statutes, its own set of laws that relate to it.
That’s unusual. In the 49 other states, the term divorce includes custody and child support and alimony and property distribution, but that’s not the case here. Divorce in this state is a tiny little part of the process. The real significant issues are the custody and child support and alimony and property distribution. Divorce is actually the simplest part of this process and doesn’t involve a great deal. It’s important for you to look at each one of those issues independently and learn about it.
A big question that people have at the outset of this process is, “Do I have to go to court?” I want to address that now because it touches on all five of the issues that you’re going to be learning about. The answer is no.
In this state, you never have to set foot in a courtroom. That’s important because so many people spend so much of their energy focusing on what might happen if they go to court. What horrible cross-examination questions will they face, or how will a judge do this with their children or that with their property?
That’s not really where you want your energy to be because most people don’t go to court. Nine out of ten people never, ever set foot in a courtroom, and that’s probably what’s going to happen to you. So many people that I talk to immediately tell me, “Oh, I’m one of the ten that will be in court,” and it can’t be true for all of us. If nine out of ten stay away from court, the odds are very strong that you’re going to be one of the ones that never steps foot in a courtroom.
All that energy that you’re using worrying about court can be much better, much more effectively used thinking about what’s really going to happen, which is that you’re going to agree, you’re going to settle. That’s what you want to do. You want to agree. You don’t ever want to go to court if you can avoid it.
Why? Well, it’s expensive. The attorney’s fees for going to court are tremendous. It’s a very expensive process. It’s very time consuming and difficult, and therefore your attorney’s fees can be very high, and you don’t want that to happen.
You want to save time in your life by avoiding court. If you go to court, you’re looking at the potential for days, weeks, sometimes months of your life being committed to preparing for and being directly involved in this process. That’s a reason to settle. If you go to court, you will drain yourself tremendously of emotional energy. This is hard enough without having to add to it, and court is difficult. So that’s another reason to look at settlement.
If you have children, and if you end up in court, that will add stress to their lives. No matter how much, as a parent, you try to separate the child from the process. They know it, they feel it, they’re a part of it. If you can settle this case, you will save them from a lot of that.
If you go to court, the judge never really knows you or understands you. They know what they’ve heard in court and what the evidence has been, but they’ll never really know what’s important to you and what your priorities are. If you want to make sure that your priorities are recognized and acted upon, the only way to make sure that that happens is to negotiate a settlement.
Finally, if you want to do something creative, you’ve got to do it outside of the courtroom. Judges are handling lots of cases, one after another, and they’ve got to do fairly standard things from case to case. They don’t have the time to do something special or different in most cases.
There are some things that you can do in terms of being creative with your children, or being creative with your property, saving money on taxes. The judges just do not have the ability to focus on because they never really have the opportunity to delve into your case in that level of detail.
So you want to settle your case if you possibly can. It’s important to view going to court as a last resort. If you can find a way to settle your case that’s reasonable, then do it. There are so many ways to settle cases.
Most people find that they’re able to sit down with their spouse and talk about an agreement. After they’ve had lots of legal input from their lawyer, they come to a place where they understand what the case is about and what the issues are and what a reasonable resolution is, and they talk, and frequently they work it out.
For people that can’t talk directly, sometimes lawyers will negotiate between one another on behalf of their clients. Sometimes we’ll use mediation where we’ve got lawyers and clients and a mediator who helps us all sit down and come to an agreement. Sometimes we’re able to avoid going to court using arbitration where we agree that instead of having a judge decide we’ll present our evidence to an arbitrator outside of court and let that person make the decision.
There are lots of ways to avoid going to court, and you really want to do that and you very much should view court as a last resort. When you resolve one of these cases, you’re going to have a pile of documents in your hands. That’s going to be the end. That’s the conclusion. That’s what we’re working toward. Those documents will either be a separation agreement or a court order. It’s important for you to understand each of these two types of documents.
A separation agreement is a contract between a husband and a wife. It’s in writing. It’s signed. It’s notarized. That contract lays out the agreement between the husband and wife on child custody and child support and alimony and property distribution. It includes all the issues.
It’s unfortunate that we call this agreement a separation agreement. It really ought to be called a divorce agreement or an end of the marriage agreement, something that doesn’t use the term separation because a lot of people have the misconception that a separation agreement is temporary, that it has something to do only with their time of being separated, but it’s not a permanent arrangement. That’s a misconception.
A separation agreement is a permanent lasting contract. It does not go away. It does not get changed by a judge later. It is a final resolution, so when you sign one of these things, you need to make sure that it says what you think it says. The only way to be sure of that is to run it by a lawyer. You want to make sure that this agreement really is what you think it is because once it’s signed you’re stuck with it. That’s a separation agreement.
The nine out of ten people that agree, that never end up in court, most of those people have separation agreements. The other small group, the ones that do go to court, they end up with a court order.
A court order is simply the decision of the judge, written down after the trial, and signed by the judge. It is the judge’s impartial decision about what ought to happen, whether it’s about child custody or child support or alimony or property distribution. That’s what a court order is. You’ll hear these terms as you look at the segments on child custody and child support and alimony and property distribution, so it’s important for you to be familiar with them.
A couple of final things that we need to talk about before you move on and look at other areas of the law. One is domestic violence. If there is violence in your family, there is a special law that allows for very quick, very powerful relief. For instance, you can have a violent spouse removed from your house within hours, and it really works in many instances to stop the violence.
In order to get that kind of help, you can talk to a lawyer, or you can talk to a domestic violence agency in your area. Most counties in this state have some sort of domestic violence agency that can walk you through the process. It’s a fairly straightforward, simple process. Some people have lawyers do it for them, and some people choose to and are successful doing it without lawyers.
Most importantly, when there’s domestic violence, if your safety is at risk, call the police. That’s what they’re there for. Dial 911 and get some help.
You need to remember, with respect to the domestic violence process, that a domestic violence order is not a miracle cure. It’s not a bulletproof vest. It’s a court order. If somebody absolutely, positively insists on hurting you, that domestic violence order may not be sufficient to protect you. You need to be realistic about what it is that the court system can achieve for you and evaluate that in the context of your particular situation.
You may find that in addition to a domestic violence order finding a safe place to stay for awhile is the best course of action for you.
The other issue we need to touch on is emotional support. This is, if not the toughest, one of the toughest things you will ever go through in your life. It makes no sense to go through this without lots and lots of emotional help. I have a lot of people who say to me, “Well, I have very supportive friends that listen and they help me.”
This is a crisis. This is a terribly difficult thing. We need more than good friends when we go through this. If there was ever a time to seek help from a trained professional, from a counselor, a psychologist who can get you through this process, this is it. This is the time to reach out for that extra help.
What I find watching people go through this day in and day out, is that you will either end up talking with a counselor now, or you’ll end up doing it later, but eventually you’re going to get some help with these issues because you’re going to need it. It only makes sense that we need help when we go through something this traumatic. So I would very much encourage you, as part of getting through this, not only to be talking to a lawyer, but to be talking to a counselor as well.
Often we can get that paid for through our health insurance, or we might have an employee assistance program through our employer or our spouse’s employer that can help us with that. Do it. It will be the best investment of time that you make. I want all of my clients to be talking to a counselor because I know if they’re doing well emotionally, they’re going to be making better decisions about their finances and about their children. It makes no sense to go through this alone.
So again, I welcome you to our website and to these presentations. I would encourage you to look at all of the presentations on all of the issues, and then to go to the website and read more about each of these issues. There’s a lot to learn. You’re going to go through this. It’s going to take a while. It’s important for you to get as much information as you can because knowledge truly is power.
I’ll say it to you again, talk to a lawyer about your particular situation. A Board Certified Family Law Specialist can make a tremendous difference in the outcome of your case. Invest the time and money in doing that, and make sure you get all the help you possibly can.