Basically, you and your spouse can use any of three methods for resolving the issues arising from your separation. You can also use some flexible combination of these methods at different stages during the process of resolution, depending upon what suits you best. Your choice of particular method, or methods, will depend largely on how well you and your spouse communicate. The choice of a method for resolution will also depend on how flexibly, cooperatively and comfortably each of you can reach compromises that are to your mutual benefit.
The first method that comes to most people’s minds for resolving disagreements during divorce is actually the method that is least used. This method is to use formal, adversary judicial proceedings. Resort to judicial proceedings would mean that the applicable issues (of custody, support and/or property) are litigated in a state court. Neither spouse has the right to a jury trial in matrimonial proceedings in North Carolina, except on the narrow alimony issue of whether one party or both parties committed marital fault. After trial, a judge announces his or her ruling about the future shape of your lives and your children’s lives. A judge’s rulings would be embodied in a formal court order.
A second method for resolving these same domestic relations issues is by means of negotiations conducted primarily between an attorney of your choice and your spouse’s attorney. Upon the successful completion of such negotiations, you and your spouse would have a written document incorporating all the agreements you had worked out with respect to custody, support and/or property. The written document would be, in most cases, a binding contract called a “Separation Agreement and Property Settlement.” That contract would most likely have been proposed by one party’s attorney, although a number of revisions may have been drafted by the other party’s attorney in consultation with the opposing spouse. In a minority of cases, all or parts of this written agreement might appear in a court document known as a “Consent Order,” which would be entered in a court file without a lengthy evidentiary hearing.
A third basic alternative for resolving domestic disagreements is for you and your spouse to negotiate with each other directly, with or without the assistance in the background of lawyers or professional counselors and mediators. Following direct negotiations, you are well advised to memorialize all your understandings in a formal contract. In such cases, you and your spouse might decide to try to draft your own provisions for a “Separation Agreement and Property Settlement.” You may borrow such provisions from sample agreements that you find in law library books, or you may use the sample agreement found on this website as a model. If your marriage was short-lived and there is no difficult property, child or other financial issues, this method might do the trick for you.
Direct negotiations and do-it-yourself drafting are definitely not advisable, however, in cases with complicated custody, support, or property issues. Where your marriage has lasted a long time or where the issues are complex, drafting your own contract will likely leave gaps that can haunt you in the future. What the future may hold in such situations is a nightmare, and that nightmare includes things such as: non-compliance with the terms of the contract (either because each spouse thought a particular contract provision meant something different, or because no one really knows what the provision does mean); conflict over issues that were never even addressed in the written agreement (such as telephone contact with a child, or transportation expenses for visitation periods); eroding good-will, based on ever-increasing tensions over contract interpretation and implementation; or exacerbated distress manifesting in the children of the marriage because the parents are unhappy over their settlement agreement. A home-brew document that is underinclusive is clearly not an adequate substitute for a professionally drafted contract. Only a trained professional can comprehend all the legal details and subtleties involved in complex family law problems.
Divorce and You