Common Divorce Questions

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Common Questions about Divorce

I live in Hampstead, North Carolina. My husband and I are separating. What is a separation agreement and will we need one?

In some situations, a separation agreement can be a great opportunity to protect your legal interests and save money. A separation agreement is a written and signed agreement between the parties resolving issues such as division of marital property, custody and spousal support.

When the parties do eventually file for divorce, the separation agreement can be incorporated into the divorce decree, wrapping up all of the issues at one time without the expense of further litigation. Call (910) 341-7570 to find out if a separation agreement is best for you. You can speak to an experienced, knowledgeable and caring divorce attorney about your separation in Wilmington, NC, Wrightsville Beach, Carolina Beach, Leland, Hampstead, Landfall, New Hanover County, Pender County, or Brunswick County.

Do I need to file for legal separation?

Many of my clients share the same concern when it comes to separation and divorce. They have been living separately from their spouse for some time, but have not filed for legal separation. They are concerned that this will prevent or delay their divorce. North Carolina law requires the parties to have lived separate and apart for a year.

There is no need to file for legal separation. If you have been living apart for more than a year, then you are legally eligible to obtain a divorce. As soon as you decide that you and your spouse should separate, there are some things you may want to do to protect your rights, assets and relationships. It is possible to create a separation agreement where both parties agree to split up their debts and assets. This agreement can be a wonderful opportunity to resolve potentially contentious issues amicably. There are other options, as well. Call now to find out if a separation agreement is right for you.

You can speak with an experienced, knowledgeable and caring divorce attorney about your separation in Wilmington, NC, Wrightsville Beach, Carolina Beach, Leland, Hampstead, Landfall, New Hanover County, Pender County, or Brunswick County by calling (910) 341-7570 today.

What is your approach to divorce and child custody cases in Wilmington, NC? At Speaks Family Law our focus is on you and your priorities. What do you want to accomplish?

What is important to you? What are your concerns? We work on each family law case like it is our only case. We understand how important these matters are to you. After all, what is more important than family? Divorce Collaborative Divorce Child Support Child Custody Post Separation Support Alimony Equitable Distribution Separation Agreements Breach or Separation Agreements Consent Agreements Domestic Violence Trials Appeals We understand that these issues produce financial and emotional challenges.

Most people do not know what to expect. Uncertainty causes anxiety. Our philosophy is that knowledge as power. We give you the information that you need to understand the rules and the process. By doing that, we are able to reduce uncertainty. You can see the issues more clearly. As a result, you are able to make good decisions. After you have made good decisions, we put our experience to work for you. We develop a cost-effective strategy for achieving your objectives.

We work to find every inch of common ground we can find. We will resolve every issue we can by agreement. If a fair and reasonable agreement cannot be reached, we can aggressively pursue your objectives in court. Divorce Custody Equitable Distribution Separation in Wilmington, Wrightsville Beach, Carolina Beach, Kure Beach, Porters Neck, Hampstead, Leland, New Hanover County, Pender County, Brunswick County and the surrounding areas.

What should I look for in a divorce lawyer?

North Carolina Family Lawyer: Rule 1 – Do No Harm Divorce and custody cases can be heartbreaking and painful. They are almost always emotionally and legally challenging for all of those involved. Because most divorce and custody cases are emotionally charged disputes, your lawyer must be careful not to add fuel to the fires of conflict. She must listen to your concerns in order to understand the important issues and establish your priorities.

She must work to identify solutions and evaluate alternatives. She must fight when it is necessary and compromise when it is not. It is possible to negotiate through a divorce, child custody revision, or request for domestic violence protective orders without poisoning family relationships or destroying a family’s finances. When the Wilmington Divorce and Custody Lawyer Ashley Smith at Speaks Family Law represents you, you can be assured she is committed to achieving your family law objectives without destroying your family.

Your divorce does not have to be a disaster. We will fight when necessary. We can also negotiate with your spouses attorneys to resolve as many issues as possible through compromise, allowing the parties, rather than a judge, to control the outcome. Call us locally at 910-341-7570 or statewide toll-free at 877-593-4233 to learn how we can help bring your situation to a resolution that will allow your family to move forward in a positive direction even after divorce.

Should I get a divorce?

Wilmington Divorce Attorney Ashley Smith Is it absolutely necessary? Any time we discuss the possibility of divorce, it is important gather information and consider it carefully. We don’t encourage divorce. However, if divorce is inevitable, we want you to know what to do in order to protect your assets and your relationships. If you are considering divorce, it is important to ask questions.Consider alternatives. Is a divorce going to solve the problems? Can you and your spouse work through the problems? Is reconciliation an option? How will divorce affect your finances and your family?

We never want to encourage divorce if a marriage can be saved. However, sometimes divorce is necessary. What matters most? Sometimes divorce is the only way. When it is, it is important to focus on what is really important to you. Divorce is confrontational by definition. You may have to fight to protect your assets or your time with your kids. You must protect your relationship with your children. Sometimes you have to be aggressive. Avoid unnecessary conflicts. It is important to protect these things without causing unnecessary harm. Many people waste time, energy and money fighting over issues that are not really that important to their core objectives. Extensive court battles can cause damage to your finances and to your relationships.

It is your lawyers responsibility to help you accomplish what is important to you without causing needless conflict or incurring unnecessary expense. Create a plan. Finding the right divorce attorney can be challenging. If you have questions call Wilmington Divorce Attorney Ashley Smith. Ashley is lead divorce attorney at Speaks Family Law Firm. Her practice is entirely focused on Divorce, Custody and Family Law. Ashley can listen to you story. She can give you practical information about the process and develop a comprehensive plan for your particular circumstances. She can give you opinions about your best course of action. This information will empower you by helping you make informed decisions. Informed decisions produce good results.

What causes divorce? What Causes Divorce?

There are lots of different causes for divorce. Every case is different. However, in my experience three factors contribute more than most. First, constant disagreement over financial issues causes many marital problems. Income, expenses, savings, investments and college funds can be sources of dispute. I find this to be especially true when times are tough.

The second common cause is when people just grow apart. Their interests, motivations and expectations change over time. Sometimes people evolve into people who are different than they were when they got married. They become interested in different things. We see this sometimes when one spouse becomes more or less interested in health and fitness or church and faith. The third leading cause for divorce in is initial incompatibility. In other words, sometimes the marriage never made sense from the beginning.

Maybe your spouse just is not who you thought they were. Maybe they engage in immoral, illegal or unpleasant behavior and you realize that you do not want that type of behavior in your life. Whatever the cause, if you are facing divorce there are things you must do immediately to protect your family and your access to your children. Call now to find out what you need to do to prepare (910) 341-7570.

After divorce, are fathers forgotten?

Our grandmothers were homemakers. They were cooked, cleaned and cared for children. Men worked. After a long day they sat down, put their feet up and read the paper. They watched the news and played golf on Saturdays. Our parents generation was different. Many women went to work. Still, they had a larger share of the responsibility in the family home.

After work, many women would cook, clean and care for children while men watched the news and played golf on Saturdays. Things have changed. Many women work just as hard as men do in order to provide for their children. The role of a father is different, as well. As fathers today, we get our kids up, get them dressed and get them to school. We read stories, find lost teddy bears and kiss boo-boos. We go to soccer games, practices and clinics. We talk, and we listen. We hug, snuggle and kiss. We examine report cards and participate in parent-teacher conferences. We praise. We discipline. We inform about the dangers of strangers, cars and rattle snakes. We regulate the consumption of broccoli and frozen yogurt. We race across grocery stores whispering words of encouragement in search of potties. We are not perfect, but we are there. We are involved. We are trying. We are parents.

Yet, after divorce we are forgotten. The mother gets primary custody. The father gets limited visitation. We can see our children every other week-end, half of holidays and a few weeks out of the summer. This is so not because of bad law. The law gives no presumption to the value of either parent. This is so because the courts have misconceptions about out level of involvement North Carolina judges are smart, knowledgeable and fair, but they need accurate information.

Identifying injustice is the easy part. What can we do about it? We can prove it. We can use technology, creativity and effort to prove to our judges that we have positive relationships with our children. We can show that our children deserve to have real relationships with their fathers. We can demonstrate that real relationships require adequate access. Call (910) 341-7570 to discover what Ashley Smith at Speaks Family Law can do to help you prove your importance, protect your access and promote your relationship with your children.

My marriage is over. I’m meeting with my divorce lawyer for the first time in a couple days. How should I prepare?

First of all, relax. Meeting with a North Carolina divorce attorney isn’t going to be a stressful occasion. We admit its not going to be a happy occasion by any means you are, after all, going to be talking about the end of your marriage, and that’s a serious topic. But divorce attorneys are known for their sympathetic nature. They wont hurt you. Trust us, this isn’t comparable to a trip to a dentist for root canal surgery, or a trip to the doctor for a report about a suspicious lump under your skin. This consultation will be solemn, but not grim. We cant be 100 percent sure what your divorce lawyer will expect from you.

What we can do is tell you a little bit about how Speaks Family Law attorneys handle their first appointments with divorce clients. Four critical areas to be considered We generally start by outlining the process of divorce in North Carolina courts. Well get information from you about where you and your spouse live, because that may influence the filing process. We then explain the typical time frame for divorce proceedings.

There are four important issues that will need to be examined in every North Carolina divorce action: Division of marital property and debts Alimony, or cash payments from one spouse to support the other Child custody, if you and your spouse have children together Child support, if you and your spouse have children together If you and your spouse have been able to come to a mutual understanding on one or more of these issues, that’s great. Your agreement will become the basis of the courts final divorce orders. Even if you have an incomplete agreement, we will tell you how we can negotiate with your spouses attorney to get a deal.

Any area in which you cannot get an agreement with your spouse will have to be decided by the judge, with appropriate arguments from each side. If that’s the case, we can begin working almost immediately on a persuasive presentation that will serve your best interests. To do that effectively, we will need access to copies of your financial records for the past several years. We don’t expect you to bring in all these documents at your first visit, but you can save a lot of time making sure that these records are available to you: Tax returns. State and federal income tax returns, plus any other taxes that you, your spouse, or your family have paid Statements from the financial advisers serving you and your spouse Accounting reports from any business you or your spouse may own, or that you own together Bank records.

We would want statements for any bank or credit union account that is personally owned by you, your spouse, both of you jointly, and any accounts in your children’s names Investment property records Stock broker records for any investment accounts Records for pensions and retirement savings plans owned by you or your spouse. These are just the most common records that we will require. After talking with you about your specific financial situation, we may need additional documents, or we may be able to pare down this list considerably.

Moving forward together Above all, the initial meeting is a chance for you and your new attorney to get a feel for working with each other. It should be a sympathetic and respectful relationship. You should be able to leave that first meeting with a sense that you have chosen to hire the North Carolina divorce lawyer who is the best suited for your personality and your specific needs.

If you don’t feel that way, if you find you are uncomfortable discussing your personal information or financial data, for example, then you may wish to continue searching for a lawyer you can trust. Were sorry to hear that your marriage is ending, and we hope that the lawyer you have chosen is a great match for you. If we can be of any help in the future, you can reach the Wilmington family law attorneys at Speaks Family Law by calling 910-341-7570 locally or 877-593-4233 toll-free from anywhere in North Carolina.

My husband and I have been married for four years, and now I have suspicions that he’s been cheating on me. Do I confront him about his actions?

Confronting him may seem like a satisfying way to vent your anger, but its not usually a helpful approach. You admit now that you have suspicions, but perhaps no real proof. What will you do if he denies your accusations? What happens if he comes up with a plausible explanation for any evidence you have gathered?

What you really need to do right now is decide what actions you want to take if your suspicions turn out to be true. Would you want marriage counseling, ideally leading to reconciliation? Do you want a separation and, if so, what kind of separation? Or do you know that you want a divorce? Unfortunately, you’re too emotionally invested in the outcome to make such a decision dispassionately. Your best option might be to schedule an appointment with a North Carolina adultery attorney who can guide you through your options based on your specific personal circumstances.

Some of our clients choose to hire a private investigator to confirm or deny their suspicions. You may wish to do that, too, if its affordable for you. Your attorney may be able to recommend a skilled and reliable investigator if you need one. As you may be aware, adultery is grounds for a divorce from bed and board, the North Carolina term for a legal separation.

In turn, a divorce from bed and board can be a precursor for a full divorce, called absolute divorce in our state, a year later. Marital misbehavior such as adultery may also be a critical factor for a judge who is dividing the property of the marriage equitably, and adultery could also influence the courts child custody decisions. A spouses adultery, then, may have profound implications for your marital and financial future. The degree of the influence will depend on your specific situation.

For a deeper understanding, we encourage you to contact Speaks Family Law at 910-341-7570 or toll-free at 877-593-4233 to schedule an appointment with one of our skilled Wilmington divorce lawyers in the near future.

I am 20 weeks pregnant with my first baby. My boyfriend left me a few days ago, saying he wants nothing more to do with me or the baby. What are my legal rights? I can’t afford to pay for all the stuff the baby will need.

There’s no reason why you should have to take on this burden alone. It takes two people to make a baby, and both of them are legally responsible for the child’s well being. Your ex-boyfriend no longer has the chance to opt out of parenthood. The fact that you aren’t married will not penalize your unborn child in any way.

You, on the other hand, will not have the same legal rights in dealing with your turncoat boyfriend as you would have had if you were married; for instance, you cant ask the court to award you spousal support after your breakup. Establishing paternity The first step in getting your baby what she needs is establishing paternity. The easiest way would involve your ex-boyfriend admitting that he is the father by being present when the baby is born and completing the necessary paperwork, or else later filing an affidavit, a legal document that expresses someones sworn statement.

From what you have told us, it doesn’t seem like this guy is going to step forward in that way. The alternative, then, is for you to file a civil paternity action in North Carolina court. The judge will order genetic tests for you, the baby, and your former boyfriend. If the blood tests indicate a likelihood of 97 percent or more that your ex-boyfriend is indeed the father, then by law the alleged parent is presumed to be the father and the results are admitted as evidence by the court.

Paternity establishes rights Once your baby’s paternity has been proven, you will be able to ask the court to demand reasonable child support payments from the father. The North Carolina family court judge will assign your ex-boyfriend a monthly sum of money he must pay you to help meet his child’s needs. As your child ages, you can even ask the court to change the amount of child support to reflect the greater needs and expenses of a growing child. In most cases, the obligation for child support ends at age 18 or when your child gets married.

Once paternity is determined, your child also gains the rights to inherit money from her father. We should also note that the father gains some rights by the paternity suit. He gains the right to ask the court for custody and visitation schedules (sometimes called parenting time).

From your description, it sounds unlikely that he will try to exercise these rights now, but he may want to connect with his child sometime in the future. Do you have the ability to handle this yourself? Taking your former boyfriend to court over paternity issues is probably something outside your normal range of skills and comfort (even if you weren’t five weeks pregnant). When you can’t handle something this important on your own, its time to call in the trustworthy and friendly, North Carolina child support lawyers from Speaks Family Law in Wilmington. Call us today toll-free at 877-593-4233 to learn how we can help you give your developing child the best start in life she can get.

After my divorce is final, can I move away from North Carolina?

Frankly, I’d like to get away from my ex-wife. Maybe. Before your divorce, as you may recall, you had to fulfill the residency requirements for a North Carolina divorce. That means either you or your wife must have lived in the state for at least six months before the divorce petition was filed. After the divorce is final, though, the only thing that may infringe on your freedom to live where you want is the final court order for your divorce.

If you and your ex-wife have children together, and if you are the primary custodian or joint custodian of the kids, then you may well face restrictions on moving with your children. Its common that the custodial parent is forbidden to move to another residence significantly farther away because this would create a hardship for the other parent who wants to visit the kids. Your very first step, if you are determined to move away, is to contact your divorce attorney in North Carolina. He will be able to review your divorce judgment and let you know if there are restrictions on your rights to live where you want. Note that such restrictions don’t only apply to moving across state lines, some divorce orders forbid moving your household even 100 miles away.

If the divorce decree contains a clause forbidding you to move, then you would have to apply to the court for a modification of the final divorce orders. Your lawyer can file that motion on your behalf and can represent you in the hearing that will follow. Of course, your ex-wife will also be notified of the date and purpose of the hearing, and she may try to have the court reaffirm its original order that prevents you from moving. It can be helpful if you can negotiate with your ex-wife directly (or through your respective attorneys) to reach an agreement before the hearing.

The court almost always will go along with an agreement between the two parties. This may require you to think of creative ways to maintain a close relationship between your kids and their mother despite the distance separating them. The wrong reason to move away We have known some clients to relocate to another state in an attempt to evade their responsibilities to pay child support or alimony (spousal support) as required by a North Carolina divorce order.

If this is your motive, we say: forget it. Your legal obligations for child support and spousal support are not changed by where you live. Enough people have tried to skip out on their duties that federal and state laws are in place to handle these defections. You will be tracked down and possibly arrested. Your pay will be garnished. You may have licenses revoked, including your drivers license or business license. You may even be risking jail time.

Connect to Speaks Family Law today If you need an alteration of your divorce orders, our family law attorneys stand ready to assist you. Give us a call today at 910-341-7570 or toll-free at 877-593-4233. We provide confidential and discreet service.

I just want a simple divorce. Do I need a lawyer?

What simple divorce generally means is that the only claim being filed is for the divorce itself. If there are no other issues that need to be determined, such as property division or child custody, then all you will need is a simple divorce. If you need a simple divorce, you can do it yourself. Many people file their own simple divorce to save on costs. Sometimes when people go into court to represent themselves, everything turns out alright. Sometimes it does not.

For example, the legal requirements for divorce are very specific, and if the Complaint is not completed, filed and served correctly, it could be rejected by the court. As a result, you could have to to perform the entire process all over again. This could add considerable time and expense. No matter what the circumstances, it is best to call or come in for a consultation. We can answer your questions.

We can help evaluate your situation and recommend the best plan of action based on your particular wants and needs. You can speak to an experienced, knowledgeable and caring lawyer about your separation and divorce in Wilmington, NC, Wrightsville Beach, Carolina Beach, Leland, Hampstead, Landfall, New Hanover County, Pender County, or Brunswick County by calling (910) 341-7570 now.

My son thinks he knows everything. He just turned 16 and says he wants to run his own life and be emancipated from his father and me. He’s even found a lawyer who will help him. Should we oppose him in court? He really isn’t ready to be on his own.

Legal emancipation is possible in North Carolina for people aged 16 and 17. A child who has been emancipated by court order is no longer under the authority of his parents. His parents no longer have the obligation to support him, and they cannot be held responsible for his actions. While there are a few alternative ways to become emancipated, such as joining the military or getting married, its clear from your question that your son is planning to petition the court for emancipation.

When legal action is taken for emancipation in North Carolina, its vitally important whether the parents support the action. The parents may tell the judge that they approve of emancipation, and in that case the court will consider if emancipation is in the best interest of the teenager. If, however, the parent’s oppose emancipation, the judge will only proceed further if the minor can prove he has been abused, neglected, or abandoned by the parents.

So you, as parents, have almost complete control of this first checkpoint. Assuming that you have been treating your son appropriately, your opposition to emancipation can stop the petition from moving forward. However, even if you were to decide not to oppose your sons wishes, he still may not get the release he is seeking.

The second checkpoint: Is emancipation in the child’s best interest? Before the judge will sign an emancipation order, he will also consider whether the teenager is ready to enter the adult world. That means the child will have to submit a plan to show he can be adequately self-reliant in a number of areas.

Your son would have to prove to the judge he could obtain and pay for:

  • Housing and utilities
  • Food, Clothing
  • Transportation
  • Medical care
  • Household items and furniture
  • Other reasonable expenses for school needs
  • Personal entertainment, and the like

Emancipation its no bed of roses. Your son probably does not understand the difficulties he would face as a minor without a family to rely on. As parents of an emancipated child, you would have no obligation to provide for his living needs. If you were divorced from his father, the child support would end, too. If this demand for emancipation is a reaction to friction within the family, you might see if family counseling could help resolve underlying issues.

It is even possible that you might want to make a bargain with your son attend family counseling for six months or a year and if he still wants emancipation after that, you will not object. You would also be wise to seek the counsel of a trustworthy North Carolina family law attorney for a deeper analysis of your specific situation and the options available to you. By calling 910-341-7570 (or 877-593-4233 toll-free from anywhere in the state), you can schedule a confidential appointment with one of Speaks Family Law’s compassionate lawyers. We will do everything we can to help you keep your family intact.

Does North Carolina recognize common law marriage? How long does a couple have to live together before they are considered legally married in North Carolina?

No, there is no such thing as common law marriage in North Carolina. Most jurisdictions in the United States have discarded the notion that couples can declare themselves married simply by living together as man and wife for a period of time. This type of common law marriage was so-called because it was rooted in ancient traditions that precede our modern understanding of how governments create laws.

Today, the common practice is statutory marriage: marriage defined and regulated by the state according to an official legal code. Only statutory marriage is legally valid in North Carolina. Indeed, North Carolina is one of the few states that never has recognized common law marriage. We should be clear on a key distinction. Common law marriage is not the same as a couple “living together.” In a common law marriage, the couple presents themselves to the community as a married husband and wife. A cohabiting couple do not necessarily consider themselves married (in fact, they almost certainly don’t think of themselves that way).

Currently, the following states (plus the District of Columbia) recognize common law marriages as valid for their residents: Alabama Colorado Iowa Kansas Montana Rhode Island South Carolina Texas Utah In a common law marriage, the couple may not apply for a marriage license (or whatever similar public records are used in their jurisdiction) and may not hold a public ceremony before witnesses to memorialize their marriage. Nevertheless, they will be entitled to every legal benefit and protection that applies to all married couples, if their state government recognizes common law marriages as legitimate.

Constitutional Issues: The Full Faith and Credit Clause Although every state sets its own rules about marriage and divorce, the U.S. Constitution has specific authority to harmonize these different laws. The Full Faith and Credit Clause in Article IV, Section 1 of the Constitution, says: “Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state.” Because of this law, when one state authorizes a marriage or divorce, all states must follow.

If a state recognizes common law marriage, then a couple married under the common law of that state must be treated as having a legitimate marriage in other states. For instance, a couple with a South Carolina common-law marriage will continue to be considered married even if they move permanently to North Carolina. Divorce? No. No state has any sort of “common law divorce.”

A couple married by the common law in a state that allows it must follow the standard divorce procedure in the state they live in. Consult a family law firm if you’re puzzled by North Carolina marriage law Speaks Family Law should be your top choice when questions arise about the law for marriage and divorce.

Our Wilmington family law attorneys provide legal representation in divorce and marriage matters for clients in New Hanover, Pender, Brunswick, Columbus, and Robeson Counties. Call us today at 910-341-7570 or toll-free at 877-593-4233 for a quick response to your family law needs.

My fiancé says we should have a prenuptial agreement before we get married. Is this really necessary? It seems unromantic to me.

Lets answer the last bit of your question first: Yes, its probably unromantic. But that’s only to be expected love and romance aren’t practical things. They tend to be all consuming. They are focused on the here-and-now and don’t look forward to the future. And let’s face it sometimes romantic love doesn’t last. Bedazzled as you are right now, you don,t want to think about that, of course.

But acknowledging that sometimes people fall out of love isn’t going to doom your relationship. People can enter a marriage in North Carolina with vastly different expectations of what married life is like, and with significantly different resources. In some cases, it just makes sense to plan for what might happen in the future if the marriage does not work out, just as you and your fiance will probably be altering your life insurance coverage now that you are starting a family together.

A prenuptial agreement is a legal contract between people soon to marry, committing both parties in advance to certain agreements if a divorce occurs. Such a document can: Specify what possessions (and what debts) from each partner are considered separate property rather than marital property. Create special agreements between the two of you for instance, awarding one partner a greater share of the marital property if the other partner commits adultery.

Establish a process for negotiating other issues to reach a divorce settlement more easily, if that becomes necessary. About half of all marriages in the United States simply do not last. Yours may be one of the fortunate ones, but you should not gamble on that. If either partner in a soon-to-be-married couple believes that you need a North Carolina prenuptial agreement, then you owe it to each other at a minimum to discuss the matter.

As North Carolina family law attorneys, we can tell you that the process of developing a prenuptial agreement can be a positive experience for a couple. When marriages fail, it is often because of money issues and even more often because the partners have never had a frank conversation about income, wealth, and debt. Discussing finances before marriage opens the lines of communication on many other issues. In rare cases, holding this conversation shows a couple that they simply aren’t compatible with one another. Now, that’s sad, but surely its better to find this out before marriage rather than after. And in other cases, the couple discovers that they are in fundamental agreement about so many things that they decide not to sign the prenup after it is drafted.

If you are ready to begin the process of drawing up a prenuptial or post-nuptial agreement, or if you just need further information, call 877-593-4233 toll-free to connect with a Wilmington matrimonial lawyer at Speaks Family Law. We can work with you and your fiance (or negotiate with his attorneys) to craft a fair agreement that reflects your wishes in a way that fosters your loving relationship.

I want a divorce, but my wife says she won’t give me one. What can I do?

Stop worrying. Your wife doesn’t get to veto your divorce. She doesn’t give you a divorce; only the North Carolina courts grant divorces. Divorce in North Carolina is a no-fault system, called absolute divorce. The marriage can be dissolved when either spouse demands it, as long as the husband and wife have lived separate and apart for one year.

This means that you must be living in a separate residence from your wife; its not sufficient if you share a house but sleep in separate bedrooms. You (or your wife) must also have been a state resident for at least six months before you can begin a North Carolina divorce action.

The process begins with the filing of a petition for divorce at the district court in the county where you live, or where your wife lives. The court clerk will accept your paperwork, and in a matter of days your spouse will be notified that divorce proceedings are underway. She will then have 30 days to respond to this notice (with a possible extension to 60 days). About the only defense your wife can make to deny you a divorce is proof that you have not been living separately for the required one-year period.

In the majority of cases, the spouse does not respond to the filing and the divorce is granted within three months of the initial filing date. Another provision in North Carolina family law allows for a legal action called divorce from bed and board. Unlike absolute divorce, the divorce from bed and board requires the plaintiff the person starting the action to prove that the other spouse (the defendant) performed some sort of misconduct.

A successful action for divorce from bed and board does not end the marriage, but it imposes a legal separation on the couple. This can become a starting point for the required year of living separate and apart that is a required for absolute divorce.

The no-fault divorce in North Carolina can be simple enough for a couple to handle it cooperatively without attorneys. When there is disagreement between the spouses for instance, in your case you are advised to retain the services of an experienced North Carolina divorce lawyer.

The Wilmington divorce attorneys at Speaks Family Law offer legal representation at reasonable prices. Call us today at 910-341-7570 or toll-free at 877-593-4233 to have your questions answered or to schedule a consultation.

How can I return to using my maiden name after my divorce? Do I have to wait a certain period of time?

In North Carolina, you are allowed to call yourself anything you want, as long as you don’t do it for fraudulent or deceptive purposes. On an informal basis, you can even tell friends that you are resuming the use of your maiden name before your North Carolina divorce is final.Many clients who are in the process of a divorce want a more formalized name change. You can speed up matters greatly by making the request for a name change part of your divorce petition. The judge will make your name change part of the final divorce judgment.

If you are already divorced and want to go back to the name you used before marriage, that’s certainly possible. The North Carolina Courts have made the form for requesting a reversion to your maiden name available online. You will fill out the form and present it at the clerks office in the civil division of your county courthouse. You will also need to show a valid photo ID and a photocopy of the divorce judgment. There will be a small fee for this process. Synchronizing your other forms of identification.

Once you have the court order allowing you to resume the use of your premarital name, its time to tidy up a few other identification issues. If your workplace requires identification tags, cards, or documents, the authorization from the North Carolina courts is probably going to be enough to get new ID issued. But what about your Social Security card, your drivers license, and your passport?Social Security card.

Based on our experience as divorce attorneys in Wilmington, we recommend you start here. You can download the form for obtaining a replacement card from the Social Security Administration. We recommend that you take this completed form to the nearest U.S. Social Security office for processing. You will need to bring along the original state court documents that authorized your name change.Driver’s license. Once you have your new Social Security card, you can apply for a duplicate North Carolina driver license with your new pre-marriage name. You are, in fact, legally obligated to tell the Division of Motor Vehicles of your name change within 60 days of the change.

However, because the DMV compares its name registry with records from the U.S. Social Security Administration, you will need to change your Social Security identification first.When you go to your local DMV office to apply for a duplicate license, you will need to take your divorce decree showing the name change or your separate court decree authorizing the reversion to your maiden name.U.S. passport. The precise form to use depends on how long ago your passport was issued. If your current passport was issued within the last year, you will file a request to amend the name; there is no fee involved.

If your passport is over a year old, you will refile for a new passport, and the regular fee schedule will apply. In most cases, the matter can be handled by mail, according to the U.S. State Department. Further information is available If you have other questions about resuming the use of your maiden name after a North Carolina divorce, we encourage you to contact Speaks Family Law.

Our experienced New Hanover County family law attorneys want to make the transition back to single life as easy as possible. Connect with us today about any divorce issue by calling 910-341-7570 locally or 877-593-4233 from anywhere in the state.

My husband and I were married in Dallas in 2009. Even though we were married in Texas, can we get a divorce in North Carolina?

Yes. Article IV, Section 1 of the United States Constitution contains what is called the Full Faith and Credit Clause. This says that state governments have to respect the public acts, records, and judicial proceedings of every other state. Texas and North Carolina and all other states have to honor the regulatory decisions of each other. Because of this clause, your Texas marriage is recognized as valid in North Carolina (and every other state).

Because of this clause, is you get a North Carolina divorce, that divorce will be recognized in Texas (and also every other state). This is true even though every state has slightly different procedures and laws governing marriage and divorce. The first step, which you may have already accomplished is to establish residency in North Carolina. To do that, either you or your spouse must live in the state without interruption for at least six months.

The next step, again, something that you may already have done is to separate from your spouse by living apart for at least a year. This period can begin even if you are living out of state, but you must be able to specify the date when you started living separately and apart. What happens next After you have satisfied the one-year waiting period, you can begin the legal process for a North Carolina no-fault divorce.

The following list summarizes what will follow.

  • You will file for divorce in the county where you or your spouse lives.
  • You will arrange for your spouse to be served a copy of your divorce complaint.
  • You can hire a process server, or you can ask the sheriff of the county where you spouse lives to deliver the papers.
  • One month later, you can request the court to schedule your divorce hearing.

If you on amicable terms with your spouse, this is a good time to negotiate over dividing assets and debts and making plans for alimony, child custody, and child support. You can also rely on your North Carolina divorce lawyer to confer with your spouses lawyer to settle these issues.

Go to the divorce hearing. If you and your spouse have not yet resolved all the issues of your marriage, the judge will schedule a trial date. If you have come to an agreement, that document will become the framework for the courts orders for the divorce. Its not really that simple

What we have outlined here is absolutely the simplest case of a North Carolina divorce. Because unexpected complications can arise at any point, you are best prepared if you have representation from a Wilmington family law firm at your side. Contact the Speaks Family Law at 910-341-7570 or 877-593-4233 toll-free today to learn how we can help get you through this difficult time on the best terms available.

I have a child custody and or child support order and the other parent is not paying; what can I do? What is Contempt?

There are several ways to ensure payment of child support once there is an order in place. The two main ways are wage withholding and contempt. Wage Withholding: This can be done initially as soon as the child support order is entered. The parties can choose not to do income withholding if they make a written agreement that shows support will be paid in another way and that income withholding is not necessary or is unreasonable.

Wage withholding can be applied at a later date if a motion is made by either party under one of the following circumstances: the paying party is one month in arrears, the 4 paying party requests the withholding, or if payments have been made in an unreliable or irresponsible way. The most that can be withheld is forty percent of the disposable income. Contempt: There are two types of contempt, civil and criminal. Civil contempt is not meant to be a punishment. but instead designed to make a person do what the court has ordered. Civil contempt can be initiated by an order to show cause issued through the court or by a motion and notice filed by the party who is owed support.

To find civil contempt, the delinquent payer must be found by the court to have willfully failed to comply with a support order and have the current ability or means to comply. The court will decide this on a greater weight of evidence standard. If the judge finds these two factors, the payer must “purge” himself by one of several methods. Some examples include jail time, attorneys fees, or an award of interest on the past-due amount from the date the motion or complaint was filed.

Criminal contempt can be direct, meaning willful actions that disrupt court proceedings happening in court; or indirect, meaning out of court action. In a direct contempt action, the alleged contempt or will be given notice of charges and opportunity to be heard. When there is no such summary hearing, the alleged contempt or must be given a show cause order. The show cause order is like a criminal indictment and the alleged contempt or may try and have the order dismissed.

Criminal contempt is an offense against the state and remedies include a fine up to $500, imprisonment up to 30 days, censorship, or any combination of the three. There are several less often used methods of getting past due child support including security, transfer of property, liens, garnishment, arrest and bail, forfeiture of licensing privileges, and in extreme cases, uses of the Federal Deadbeat Parents Punishment Act. In conclusion, to ensure that you get the support money you are due, court action must be taken.

I’m a member of a U.S. Army infantry stationed in Afghanistan. My wife is divorcing me in North Carolina. Do I need to hire an attorney?

At some point, yes, you will want local legal representation. You certainly need legal advice immediately. As a service member on active duty, you can get free legal advice through the military’s legal division, the Judge Advocate General (JAG) Corps. Even if you are in a fairly active combat zone, your request for JAG assistance will be answered. JAG personnel can keep you informed of your legal rights. JAG attorneys do not represent service members in divorce cases.

They may not be completely up-to-date on the specific divorce law in North Carolina (or any other state). In other words, your JAG contact will be able to explain legal jargon to you and give you a good fundamental understanding of your legal position, but he or she will not give you all the help you need. Stopping the Gears of Justice You may want to seek a delay in your divorce case under the Service members Civil Relief Act (SCRA). This 2003 law was passed to freeze the action on civil lawsuits where one or both parties to the suit are active military personnel.

At your request, the North Carolina court that is handling your divorce will delay the proceedings for 90 days. If you are still overseas at the end of this period, you can request additional extensions but the court is not required to grant any delays after the first one. Still, 90 days gives you a good period of time to find a North Carolina divorce attorney to represent you in your case. If you are having trouble finding a lawyer you trust, your JAG attorney can contact law firms stateside and help you find one for your divorce case.

If the court denies your request for an extended delay in the proceedings, the judge will appoint a lawyer to protect your interests if you have not hired a divorce attorney in North Carolina. Go It Alone? If you want to try going through a divorce without a lawyer well, lets be honest: our law firm usually isn’t in the position of saying,

No, don’t hire an attorney. But, if you and your wife have come to an agreement that your marriage must end, and you agree on all issues concerning dividing your property, and you agree on child care and child support and alimony, and if you trust her completely not to take advantage of your absence, then you probably can go forward with a no-fault divorce in North Carolina without the aid of a lawyer. We hope it works out okay for you.

My wife and I both agree our marriage is over. But, we have three children together, and we’re worried the divorce will hurt them. Should we stay married for the sake of the children? Or, if we get a divorce, how can we make sure the children get through it okay?

You have your priorities right. You both recognize that the long-term well being of your kids has to be the top consideration in determining the way you end your marriage. A North Carolina divorce has tremendous potential to inflict lasting pain on a couples children. Stick to your determination to avoid that. Your willingness to remain in a marriage you both recognize is over says a lot about your mutual commitment to your children.

As a first step, I suggest that you consider marriage counseling, if you have not yet tried it. Its possible that you two still have enough in common to revive your marriage. Yes, I work as a Wilmington divorce attorney, so recommending that couples explore options other than divorce might work against my financial interest. But, just as a good dentist never will extract a tooth that still is basically healthy, I believe in doing whatever it takes to keep a family intact, if possible. Should you stay married for the children’s sake?

However, if you realize that your marriage really cannot be revived, then you must get a divorce. Staying married for the sake of the children is a noble sentiment, but almost always is unhealthy and unworkable in real life. Lets say your youngest daughter is three years old, and you commit to remaining in a loveless marriage until she reaches age 18. That’s 15 years of your prime adulthood sacrificed. Can you do it? Probably. But all too often, couples that try to make that commitment just have resentments that slowly curdle over then next 15 years.

The feeling of being trapped ends up poisoning their family relationships first with the spouse, and then with the children. Even though the choice was yours not to divorce, you may end up secretly blaming your children. If you wait until your daughter is grown to divorce, that likely will be a bitter and vengeful divorce proceeding. As a parent, you are expected to make some sacrifices for your children’s happiness. You cannot expect to sacrifice your chance at personal happiness and fulfillment and have everything come out all right in the future. A divorce will be better for the family than a toxic, hollow marriage.

A Good Divorce: Yes, it is possible once you and your spouse decide that the marriage is over, that is the best time to arrange to end the marriage in a positive way that provides closure. You still have enough of a working relationship with your spouse to reach an agreement on the fundamental issues: division of property, alimony, child custody, and child support.

Your mutual commitment to the well being of your kids will keep you on track. Done properly, with mutual respect, a divorce can be an important lesson for your children. You can teach them how adults can act responsibly to settle their own problems in a cooperative manner. You and your wife may no longer be able to stay married together, but you can still show respect and maybe affection for each other and love for your kids.

Turn to Speaks Family Law if you truly are interested in a non-adversarial divorce in North Carolina. First and foremost, we are a Wilmington family law firm: that means we are more interested in seeing a family flourish than in collecting a fee to break a family apart. Call us today at 910-341-7570 locally or toll-free at 877-593-4233. We will do our best to end your marriage while preserving a lasting, positive relationship among all the members of your family.

Do I need to hire an attorney for a North Carolina no-fault divorce?

No, you don’t have to hire one. However, it may be in your best interests to hire an experienced North Carolina divorce lawyer, even if you are planning a no-fault divorce. All states now have some form of no-fault divorce in place. In the last few decades, U.S. society has realized a robust marriage requires both partners active commitment.

When one spouse decides that the marriage is no longer capable of working, there is nothing to be gained by forcing the couple to remain together. State laws have adapted to this new view of marriage by making it easier to dissolve marriages without pinning the blame on one spouse. No-fault divorces have become the most common way of ending a marriage in the United States.

We understand in these tough economic times that families want to stretch their budgets as far as possible. Because the forms to petition for a no-fault divorce seem relatively simple, hiring a lawyer may seem like a frivolous expense. All I need to do, some people think, is show that I have been living separately and apart from my spouse for at least twelve months.

If only it were that simple In fact, a lot of details need to be ironed out in any divorce: Who gets the kids? Does that parent get to make all the decisions about raising them? Even what church they should attend? How much money should each parent be expected to supply for child support? Who gets possession of the family house? What about other property you own jointly how should it be divided? Only one of you can keep that signed copy of Springsteen’s Born to Run, and you both want it. Or do you have to sell it and split the proceeds? One of you works and the other does not. Should the working spouse pay to support the one who hasn’t been working outside the home? Does it matter if the spouse who doesn’t work gave up a promising career so that the working spouse could go to medical school? What about family debts? One spouse just bought an expensive sports car. Is it fair that he may keep the car but the car payments are split equally? Who gets to keep the family pets? In fact, the details can be overwhelming.

Yes, you can go to court on your own without any plan for dividing assets, child custody, spousal support, or child support, but that just means the judge will get to make those decisions. Can You Really Cooperate with Your Spouse? Sometimes clients come into our Wilmington family law firm and say they intended to sit down with their spouse and make all those decisions in advance, as friends. It sounds good, but it almost never works.

If you really are able to negotiate all those details fairly without anger or drama then you probably have a fundamentally solid relationship. Are you really ready to get divorced? More often, going over the lists of property to divide and issues to settle will make you both upset about the things you gave up to the other spouse. Hostility rises. The spouse who is more eager to settle the divorce will be pressured to make greater compromises to sign away more property to the other party, or to give up alimony demands in order to gain cooperation and file the divorce sooner. Each side may suspect the other of concealing some assets or property that should be divided.

Its this simple: a couple who decide to cooperate as friends in deciding how to end their marriage may never be able to be friends afterward. A Lawyer Can Help Lawyers aren’t just people in suits who show up at a courthouse; were also professional negotiators. Without a Wilmington divorce attorney by your side, there is too much risk that your rights and interests will be shoved aside in the divorce process. No matter how well you get along with your spouse, feelings will get hurt and your future relations will suffer, unless a third party can act as a buffer between you.

At Speaks Family Law, we can be as involved in the process as you want or as you need. If you just want a North Carolina family law attorney to look over your no-fault petition paperwork, we can do that. If you need help reaching a fair settlement with your spouse or with your spouses lawyer then that’s what well do. Call us today at 910-341-7570 or toll-free at 877-593-4233. Your circumstances are unique, so your divorce will need individualized attention. We get that. At Speaks Family Law, every client is our most important client. Call today and let us show you how we can smooth your path forward.

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