Divorce Custody & Surviving The Holidays

divorce-holidays

by Attorney Laura Esseesse

The holidays are a time for celebration and spending time together with the ones you love. Every holiday song repeats the message of love, sharing, and family.  For a recently-divorced or separated person in North Carolina, however, the holiday time can be especially stressful and difficult. Co-parenting during the holidays can be particularly challenging. So what can you do to try to ensure the holidays go smoothly?

Most parents come up with a holiday schedule that is different from the regular visitation schedule. Whatever the situation, you will want to outline a clear holiday visitation schedule before the holiday season begins. In order to arrange a holiday schedule that will work best for your family, you need to think about which holidays and which times during the holidays are most important to you. A typical holiday schedule tends to involve a rotation so that one parent has half of the holidays with the children on even years and the other holidays on odd years. This schedule works when families live farther away from each other and splitting the day would involve too much travel time or interruption.  Another way parents divide holidays is to exchange the children halfway through the day so that the children spend some time with each family.  One parent can celebrate Christmas Eve and the other parent can celebrate Christmas dinner; or the children might spend Christmas morning and afternoon with one family and then Christmas late afternoon and evening with the other.  This works especially well if the families will arrange their holiday meals so that one serves a Holiday lunch and the other serves a Holiday dinner.  The children benefit with special holiday time with each parent and, of course, lots of delicious food!   This kind of holiday custody division works well with Thanksgiving, Easter, Christmas and Hanukkah if the parents reside close enough to limit the amount of travel for the children.

If possible, try to talk to the other parent about the holiday schedule and how to best handle the exchanges so that your children spend significant time with both families without too much travel or interruption. Both parents may need to be more flexible in scheduling dinner or present-exchange/party times to make accommodations for travel, exchange times, and/or naps.  It is possible that the other parent will think it is a good idea to spend Thanksgiving with the children in exchange for Christmas, or possibly Christmas Eve in exchange for Christmas Day. You may come up with your schedule together, through your attorneys, or by order of the court. No matter what you and the other parent decide, try to make the transition as smooth as possible for your children. You should talk to your children and prepare them for what to expect during the holidays so that they are not surprised (and not in the middle of a fun activity) when it is time for exchanges to occur.

The transition of going from one household to two can be easier on your children if you start some new holiday traditions special just for your children.  Younger children are excited for the celebration, no matter what date it actually occurs.  If you do not have your children for Christmas or Hanukkah in odd-numbered years, you might have a holiday celebration the weekend before or after the actual holiday.  If your children are old enough, you might want to wait until your children are with you to decorate for the holidays. You can assign each child a task to help with, such as cooking or hanging lights. You might also consider going out of town to somewhere fun with your children to celebrate the holidays if you have an extended visit with them during winter break. No matter how you decide to celebrate, encourage your children to contribute their ideas and pay attention to how they are dealing with the changes.

An experienced family law attorney can help ease the burden of deciding what sort of holiday schedule will work best for your family. Your first holidays without your children will inevitably be difficult. Remember to relax and try to enjoy yourself as much as possible. Surround yourself with family and friends who can support you and express how much you are loved and needed.

If you need assistance with custody or a custody consent order, call Montgomery Family Law at (919) 816-9002.

Happy holidays from our family to yours!

Filing For Divorce in North Carolina: Process and Costs

cost of divorce in nc

by Attorney Scott Montgomery

Board Certified Specialist Scott

Going through a divorce can be a stressful and complicated experience. Regardless of the length of your marriage, a divorce judgment has numerous legal implications. Speaking with a North Carolina family law attorney when considering a divorce will help you understand the divorce process, the cost of divorce, the potential pitfalls, and the legal effect of obtaining a divorce. Every divorce is as unique as the people involved in the marriage.

What do I need to consider about the cost and process of getting my divorce?

Although every divorce is unique, there are some common questions that will help an attorney determine what might be necessary for you:

  • Are you seeking post-separation support and/or alimony? Is your spouse likely to make these claims?
  • Do you have joint or separate assets and debts which need to be resolved or divided in equitable distribution prior to your divorce?
  • Will it be difficult to serve your spouse with legal documents?

Answering YES to any one of these questions means that you absolutely should consult with an attorney prior to filing for absolute divorce. Even if you answered NO, there are potential roadblocks ahead.

What are the basic facts about divorce in North Carolina?

In North Carolina, once you have been living separate and apart from your spouse for at least one year with the intention that your separation remains permanent, you are eligible to file for an absolute divorce. An absolute divorce is a very powerful document that severs the bonds of husband and wife in the eyes of the government and all third parties. It is important to ensure you have made arrangements for all of your marital property and debts before filing for divorce because once an absolute divorce has been granted, you may not file claims for spousal support, post-separation support and alimony, or equitable distribution. That also means any jointly-owned debts or assets will continue to be in both of your names unless you petition the court for a division. Therefore, it is imperative that you either address these issues in a separation agreement prior to filing for divorce or file claims for equitable distribution, postseparation support, and alimony when filing your complaint for absolute divorce. Without addressing these issues, the real cost of divorce could become much greater than anticipated.

Imagine trying to convince your spouse to pay half of the credit card debt or to sign over the house years after the divorce. The unsuspecting party can cause himself or herself anguish and increased legal costs trying to unravel the tangles of a poorly-handled divorce.

What if I don’t have any support issues or property and debt? Are there other pitfalls?

Even if you’ve already handled all your property and debt, there are other pitfalls on the road to an absolute divorce. If you are seeking an absolute divorce, you may either hire an attorney or proceed without an attorney. If you decide to file for an absolute divorce on your own, many courts have a Do-It-Yourself packet including forms you will need to complete, such as a Complaint for Divorce, Civil Summons, Domestic Civil Action Cover Sheet, Servicemembers Civil Relief Act Affidavit, Calendar Request, Motion for Summary Judgment, Judgment of Absolute Divorce, and Certificate of Absolute Divorce. Additionally, you will need to pay a filing fee, ensure your spouse is properly served under the North Carolina Rules of Civil Procedure, and appear in court. It is imperative that you fully understand North Carolina laws before you attempt to file for divorce on your own. Montgomery Family Law has assisted many clients who have attempted to follow the Do-It-Yourself packets only to find they have wasted their time and resources, are frustrated, and still married.

One of the most important steps in obtaining an absolute divorce is that you must achieve proper service on your spouse. That means that you need serve him or her by sheriff, by acceptance, or by designated delivery at his or her place of usual abode or where he or she usually lives. If your spouse lives outside of the country, you need to obey the laws of that country or of the Hague Convention to serve him or her with legal process. If you cannot prove that you have proper service according to North Carolina law on the date of your scheduled hearing, the judge will not grant your divorce.

A divorce that is done incorrectly can be set aside by the court. This can cause significant problems, not only for you, but if you’ve remarried, to your new husband or wife who suddenly finds him or herself not legally married to you.

Whoa! I can’t risk messing up my absolute divorce. What should I do?

The skilled attorneys at Montgomery Family Law can help you whether you have support and property issues or just want to ensure your divorce is handled correctly by a professional. If you are interested in hiring an attorney to assist you in filing for absolute divorce and you have no other outstanding issues, Montgomery Family Law will offer to complete your divorce for a flat fee that captures the costs of divorce in NC, fees, and attorney time associated with obtaining a divorce judgment. You can sit back and rest assured that your divorce will be handled adeptly by attorneys who know the pitfalls and how to avoid them. If your divorce is uncontested, it’s likely that you won’t even need to appear in court.

For divorces including out-of-country or difficult service, or claims for equitable distribution, alimony, and/or postseparation support, the cost depends entirely on the complexity of your particular case. Call (919) 816-9002 for a private consultation with one of our skilled attorneys to discuss your unique situation.
It is strongly recommended that you consult with a North Carolina family law attorney when considering a divorce in NC to ensure that you do not unintentionally waive your rights to spousal support and equitable distribution, even if you decide to file on your own. Consulting with a Raleigh family law attorney may also help ease any concerns you may have about the divorce process. The compassionate attorneys at Montgomery Family Law are able to assist you during this difficult time in your life.

To schedule an appointment and learn more about our services and fees, contact us at (919) 816-9002. Life is short and your time is too important to waste.

Alienation of Affection in NC

alientation of affection in nc

by Attorney Charles Montgomery

logo-CHARLES

What is Alienation of Affection?

North Carolina is one of only a few states that recognizes the tort of alienation of affection. Alienation of affection allows a spouse to sue a third party for wrongful acts that deprived him or her of the love and affection of his or her spouse. While this tort can be used to sue any third party, including meddling in-laws, it is typically used to sue a spouse’s paramour (extramarital romantic partner). A business or company, however, cannot be sued in North Carolina for alienation of affection.

Can I Sue for Alienation of Affection in NC?

In order to be successful in an alienation of affection lawsuit, you must prove the following elements:

  1. You and your spouse were in a valid marriage with genuine love and affection;
  2. The love and affection between you and your spouse was destroyed and alienated;
  3. The wrongful and malicious behavior of the third party was the cause of the destruction and alienation of your spouse’s love and affection;
  4. The wrongful and malicious behavior occurred prior to the separation of you and your spouse; and
  5. The alienation damaged you (i.e., led to the dissolution of your marriage, separation, depression, economic loss, etc).

How do I show my spouse and I shared love and affection before the affair?

To show that you and your spouse were in a loving marriage, you should gather and preserve items such as cards, letters, notes, photos, home videos, social media posts, and other documents that will help to show that genuine love and affection was present during the marriage. Make a list of the kinds of behaviors your spouse engaged in before the interference of the third party: bringing you flowers, making you a special meal, surprising you with your favorite treat, rubbing your sore muscles, etc. You should also be prepared to ask your family and friends who knew you and your spouse during your marriage to testify about the loving and affectionate behaviors they witnessed between you and your spouse before the interference of the third party.

How can I prove that the third party caused the destruction of my marriage?

There are many reasons why a marriage might fail. Alienation of Affection is reserved for those marriages where the parties would still be together and in love if not for the interference and wrongful behavior of someone else. It is not necessary that you prove your spouse and the third party engaged in a sexual relationship during the marriage, but rather that the actions of the third party alienated your spouse’s love and affection. Making excessive telephone calls, sending sexy texts or emails, arranging secret rendezvous or private meetings: these kinds of behaviors could be sufficient for a jury to find that the person knew or should have known his or her actions might cause harm to your marital relationship. If you do have proof of a sexual relationship between your spouse and a paramour during the marriage – and prior to any period of separation – it is presumed that the paramour’s behavior of having a physical relationship with your spouse was malicious and done with the knowledge it might cause harm to your relationship.

What if my spouse moved in with this other person right after we separated?

While the third party’s wrongful behavior needs to have destroyed the relationship prior to your separation in order to claim alienation of affection in NC, post-separation actions which are suspicious may provide evidence that a relationship was occurring during your marriage and before the separation. A sudden, intimate relationship with a friend or co-worker which occurs immediately following separation and moves undeniably fast can be used as evidence that those texts, lunches, weekend retreats, or nights working late with that third person were actually wrongful and malicious actions which seduced your spouse’s affections away from you.
What arguments might be brought against me if I sue for alienation of affections?

Some possible arguments the defendant might bring against you could be that you have invaded his or her privacy, for example, if you hired a private investigator to report the third party’s behavior, or that you are engaging in malicious prosecution (e.g., if the third party claims you are using the lawsuit for an improper purpose – such as jealousy, revenge, etc. – and without sufficient proof of a real legal claim for alienation of affection).

It is also important to consider what possible defenses that a third party may bring up in an alienation of affection case. Some possible defenses are consent, separation, or the statute of limitations. These defenses, if proven, may give the third party the upper hand. If you consented to permit your spouse to have an affair with the third party or if you encouraged their relationship, you will likely be unsuccessful in a claim for alienation of affection in NC. You will also likely be unsuccessful if the relationship between your spouse and a third party occurred entirely after you and your spouse already separated (i.e., began living separate and apart with the intention to remain separate). Finally, a valid claim for alienation of affection must be filed within three years from the time the last wrongful act occurred or the claim will be barred by the statute of limitations, so if you believe you have a possible claim, you should not wait before talking to a certified family law specialist.

What damages would I be entitled to if I’m successful?

To be the winning party in an alienation of affection case, along with the other elements, you would need to show that you are entitled to compensatory damages. Some examples of compensatory damages you might have suffered include: loss of your spouse’s income and half of your property; emotional distress requiring therapy; your emotional state affecting your job or ability to earn, etc.

Compensatory damages compensate or reimburse you for your actual losses. Additionally, if the actions of the paramour were especially shocking or heinous, you might be awarded punitive damages which are meant to punish. Theses damages – both compensatory damages and punitive damages –are both monetary damages (requiring the defendant to pay you compensation).

One of our skilled attorneys can help you consider whether the third party has assets, income, property, or an ability to pay you monetary damages before you undertake the expense of a lawsuit against that person.

Now what should I do?

Pursuing a claim for alienation of affection can be stressful, costly, time-consuming, and emotional. There are many factors that should be weighed. To aid in your decision about whether to file a claim for alienation of affection against a third party, contact the experienced North Carolina family law attorneys at Montgomery Family Law at (919) 816-9002 to arrange for an initial consultation.

Divorce vs. Legal Separation in NC; which is better?

divorce or legal separation

by Attorney Laura Esseesse

What is the difference between absolute divorce and legal separation in North Carolina?  The former concludes in a final judgment dissolving the marriage, while the latter can usually be reversed simply by entering into a new agreement with your spouse and/or resuming living together as a married couple.

In order to obtain a divorce in North Carolina, the parties must be separated for a period of at least one year prior to applying to the court for a divorce. A married couple in North Carolina is considered “legally separated” by the court at the time at which the parties move into separate residences with at least one spouse having the intention to remain separated indefinitely. During the period of separation and before the entry of a divorce, the parties may enter into agreements about the division of their property, spousal support, child support, and child custody.  There is no requirement that either party actually proceed with a divorce after one year.  However, one spouse cannot prevent the other spouse from seeking a divorce, so long as the minimum separation period of one year has been satisfied.

A “legal separation” in North Carolina is different than in other states. In North Carolina, it is relatively rare to seek an actual decree of legal separation from the court at the time that one spouse moves out. In order to do so, one must prove marital fault on the part of the other spouse. (See : Court-Ordered Separation) However, it is possible to achieve a “legal separation”  through the negotiation of a separation agreement.

A separation agreement is a private contract (not submitted to the court) between spouses where spouses agree that they will live separate and apart.  In such a contract, the spouses would typically also agree to a division of their property, debts, and spousal support. Spouses might also agree to child custody and child support in a separation agreement.

Alternatively, it is often advisable to incorporate custody and child support terms into an agreement that is submitted for approval by the presiding family court judge. Once entered by the judge, such agreement is called a “Consent Court Order.”

A legal separation established by a contract where the parties agree to live separate and apart, but not necessarily to ever divorce, can usually be reversed simply upon an actual resumption of the marital relationship. Typically, such separation agreement would contain language stating that the agreement becomes void as to any terms not already carried out, if the parties resume living together as a married couple.  It is important that such agreements be carefully drafted, because the effect of a separation agreement, particularly as to what would happen in the event of reconciliation, can vary widely depending on the actual terms and language of the contract.

Here are a few of the more common reasons couples choose to remain legally separated over getting divorced:

  • Religion: Some couples may choose to live separate lives yet will not divorce on moral or religious grounds. In this scenario, legal separation is a viable alternative so long as neither party wishes to remarry.
  • Children: The inevitable lifestyle changes that come with divorce can be particularly difficult on children. Some couples choose to separate and delay the actual divorce action until their children are mentally prepared for the change or have left the home.
  • Time & Perspective: For those unsure of divorce, a legal separation gives both parties some space, time to think, and a taste of independent life once again. Spouses can change their minds at any time while they are legally separated. A separation can provide the clarity needed to help make a final decision as to whether to divorce or attempt reconciliation.

N.C. Gen. Stat. § 52-10.1 provides for the execution of a separation agreement. In any of the above instances, such an agreement can clarify child custody and support issues, division of property, responsibility for marital debts, and spousal support obligations.

In North Carolina, divorce may be a better option for those who know that reconciliation is neither likely nor desirable upon completion of the first year of separation. Here are a couple of common reasons why divorce may be the preferred option to an indefinite legal separation in North Carolina:

  • Certainty: In cases where both parties are resolute in their desire to start over, divorce may be a preferable option to a long-term legal separation.
  • A Desire to Date or Remarry: If either party wishes to remarry, a divorce will be required. Additionally, a dating relationship may influence a judge’s custody award if one parent allows a paramour to stay overnight while the children are in that parent’s custody.

 

In any event, a physical separation of at least one year is required before either spouse can file for a divorce. However, some individuals may wish to remain legally separated and never actually divorce. If you wish to be legally separated from your spouse, a separation agreement may be a good option.  Should you require assistance with a separation agreement, divorce action, or simply need an informed opinion on which option may be best for you, an experienced family law attorney can be an invaluable asset.

Choosing between separation and divorce in North Carolina can involve complex legal questions. While friends and family will offer their opinions, this is a highly personal decision and every situation is unique. Take the time to learn the advantages and disadvantages of each. The more informed your decision, the better your prospects are for a favorable outcome.

The Family Law attorneys at Montgomery Family Law are here to help and ready to put their many years of experience and sound judgment to work for you. Contact us today at (919) 816-9002 to schedule an initial consultation.

 

 

 

 

 

Separation in North Carolina

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by Attorney Laura Esseesse

Before the court will grant an absolute divorce in North Carolina, one must be legally separated for over one year. The date of legal separation is considered to be the date on which one or both parties move from the marital residence to a separate location with the intention of a permanent separation.

One cannot live under the same roof as a spouse and be legally separated, even if a separation agreement exists. North Carolina law requires the spouses to be living actually physically separate and apart (not on the same premises) in order to be legally separated.  In theory, it might be possible for an exception to be made if the residence has been divided into two distinct, unconnected units with no overlap or common area. However, one should first consult a North Carolina family law attorney before considering this option, as such an arrangement is generally not advised and might well not be recognized as a valid separation by the court.

How does one file for separation in North Carolina?

While one need not file for separation in North Carolina to be considered legally separate, many couples seeking dissolution of their marriage choose to enter into a separation agreement.  Typically these agreements cover issues concerning child custody and visitation, child support, alimony, and division of property. A separation agreement is a legally binding contract between spouses and can be executed only after the parties have already separated or with the stated intent to separate immediately after.

Once you or your spouse have moved out of the marital residence with no intent to resume the marital relationship, the initial conditions for legal separation have been met. The state of North Carolina does not require the filing of any paperwork on the date of separation to be deemed “legally separated” in order to later qualify to file with the court for divorce, after a separation of one year.

Who can draw up a separation agreement?

A separation agreement can be drawn up by either party and once agreed to, requires both spouses to sign the document in the presence of a notary public.  As a legally binding contract, a separation agreement can be incorporated into a divorce decree (or not). Regardless, both parties are bound by this legal contract. Enforceable under North Carolina law, the contract enables one party to seek legal remedy against the other should the terms of the contract not be met as previously agreed.

What should be included in a separation agreement?

Separation agreements can cover anything you wish so long as it does not conflict with any existing laws or violate public policy. Some of the items typically covered in a separation agreement include child custody, child support, spousal support, health coverage, benefits, and tax issues. One may address property division of assets and debts as well, assuming that a property settlement has not been executed as well.

Should marital debt be included in a separation agreement?

Creditors are third parties and as such are not bound by any agreement reached between spouses as part of a separation agreement. If a spouse agrees to pay a debt as part of the agreement and does not do so, the lender can legally pursue either or both parties to collect the debt.

What cannot be covered in a separation agreement?

There is a limit to what a separation agreement can or cannot do. For example:

  • It cannot bind a third party such as a bank or other creditor (see above).
  • It cannot replace a restraining order should one party feel they need protection from the other.
  • It cannot bind the court to child custody, child support, or visitation terms as they may be modified at the court’s discretion if deemed in the best interest of the child involved.

We strongly suggest that one consult with an attorney before signing any separation agreement. It is important to read the proposed terms carefully and ask your attorney to review them thoroughly, as separation agreements are legally binding.

Still have questions about filing a separation agreement in NC?

The family law attorneys at Montgomery Family Law are ready to assist you in determining the best course of action given your unique situation. To schedule an appointment and learn more about our services, call us at (919) 816-9002.