When can I starting dating again?

North Carolina has an Alien of Affection statue. However, the statue only applies up to the date of separation from your spouse.  After you have separated, you may begin dating.

If your divorce is contested, you may wish to consult your family law attorney before beginning to date. Although you are legally allowed to begin a new relationship, it may be used in court to call your creditability into question. If there is an adultery claim against you, your spouse may try to use the fact you began dating immediately after the separation to bolster the claim.

Consulting your attorney before beginning to date may not be romantic, but knowing your options may protect you from a lengthy and acrimonious legal battle.

Want to Spy on Your Spouse? See Your Lawyer First!

Recently, a NC jury held a man liable for $25,400 for using a keystroke monitoring program to access his wife's computer. Up until this point it was believed this behavior was allowed as it was not technically intercepting a message but rather reading stored information. Read more about the case here (subscription required), or click here to read the news article. If you have any questions, contact your family law specialist.

What if my spouse won’t sign the divorce papers?

Although the lack of cooperation can be frustrating, North Carolina law says that if you have been separated for at least a year and a day you can file for divorce. The court will grant the divorce based on the length of separation. Your spouse does not have to sign the divorce papers for the divorce to be valid, nor does your spouse have to consent to the divorce. 

In most circumstances, a divorce alone will not resolve your property rights in a manner that is satisfactory to most people.  You will want to negotiate a settlement with the other side to try and reach a satisfactory resolution.  If he/she still refuses to sign the final settlement documents (separate from the actual divorce), you may need to have a judge resolve your conflict.

It is important to know that you lose certain rights upon the entry of a Divorce Judgment.  Consult with an attorney about those rights before proceeding with a divorce on your own.

I called a law firm and they wouldn’t answer one quick question over the phone! Where do I find answers to my family law questions?

In general, most family law attorneys will not answer an initial legal question over the telephone for a number of practical reasons. 

First, almost no question in family law is ever simple! Second, it would be impossible for any attorney to know all of the facts of your divorce case with a five minute phone call in order to give you accurate answers. An inaccurate answer, or one without all of the facts, could have a very detrimental affect on you and your case.

Most family law firms receive a large volume of calls on a daily basis. Many of those calls are handled by experienced paralegals so that the attorneys can work with existing clients. That attention and dedication to clients is the same attention and dedication that you should expect from your attorney during your divorce.

I want to leave, but my spouse is threatening to sue me for abandonment!

This may be the #1 most asked question a family law attorney hears.  Although this sounds like a scary threat, it has little practical effects in most courts.  North Carolina is a “no-fault” divorce state so abandonment is not pertinent to an absolute divorce. North Carolina Family Law only allows for an absolute or uncontested divorce under two grounds: separation for 12 months (link to Blog #3) or insanity. You simply cannot sue for “abandonment.” The abandonment threat has its roots in old law when a spouse was entitled to alimony or a divorce only if it could be proved that abandonment or some other fault factor had occurred. That law changed in 1995 allowing for alimony to be based on the economic factors only.

However, you should be aware that abandonment in some cases may be a factor when the judge determines the amount and length of alimony and the equitable distribution of property. North Carolina family law considers “abandonment” to have three parts: (1) one spouse brings cohabitation to an end without justification, (2) without the consent of the other spouse and (3) without the intent of renewing it. All three parts must be proved in order to claim abandonment.  That said, each individual judge values the fault factors for alimony, like abandonment, differently.

Before leaving the marital home, it is always best to consult with a family law attorney to make sure your rights are legally protected. An experienced family law attorney will help you determine if additional steps should be taken to secure your property and to retain custody of your children before you leave home.   The attorney can also help you determine what, if any, impact abandonment will have on your case.

I can’t afford to move out. Can I still separate from my spouse while living under the same roof?

Sleeping in two separate rooms in the same house is most likely not going to be considered a separation for divorce purposes. As long as you continue living under the same roof, separation as required by law can be difficult to prove.  One family thought that they would literally put a brick wall through the middle of the house to “separate,” but the Court did not consider that a separation.  However, another Court allowed one party to live in a house in the back yard of the marital residence and that was considered separation for divorce purposes.

Continuing to live under the same roof may increase emotional conflicts and may also have negative consequences on your case.  These consequences include the potential length of alimony payments, the valuation date for property distribution and child custody.

Moving out also has its own problems, such as who will pay the mortgage on the marital residence. If you are contemplating separation, seek legal advice prior to separation to help you be prepared and to plan the appropriate time and method for separating.

Do I need a signed document to be legally separated in North Carolina?

The short answer is no, you do not need a sign a document to be “legally separated” in North Carolina.  To be legally separated in North Carolina, the married couple merely must live separate and apart with the intention of one or both parties that it be permanent.  A Family Lawyer will not typically advise you to move out of the marital home without a plan in place.  There is a complicated and little used procedure called in North Carolina called Divorce from Bed and Board, which is a judicial determination of a legal separation.

The better answer is that people normally want to resolve their marital disputes with a signed Separation Agreement.  This document will affirm that the parties are legally separated, determine the date of separation and resolve issues regarding the parties’ finances and sometimes their children.  You do not need a Separation Agreement prior to being “legally separated,” but it is an essential piece to resolve your family conflict.

Determining the date of separation can sometimes be a grey area. For example, if you separate and your spouse moves back in for any reason, there may be a disagreement over the date of separation. Since you must be separated for more than a year to file for divorce in North Carolina, disagreement on the date of separation may adversely affect the timing of your divorce. 

Remember the divorce merely ends the legal relationship between husband and wife.  A divorce does not resolve issues such as property distribution, child custody, or financial issues.  You can work on resolving these issues during the one year separation period required to divorce or even better, prior to a separation. 

There are certain rights that you lose upon divorce so you should be fully advised about your rights under North Carolina law before proceeding on your own. Further, when you move out of the marital home, you may not be allowed to re-enter.  So, planning ahead for the best time to separate is of utmost concern.  Before you make any life-changing decisions regarding separation or new living arrangements, consult with your family law attorney.