I have to be honest: Writing blog posts about nuances of Chapter 50 of the General Statutes is a complete and utter snooze. The only reason I do it, frankly, is in an attempt to creep my website up the Google rankings as cheaply as possible. I wonder who even reads these posts other than that Google-bot thingy looking for keywords and phrases for online searches. I figured going forward, I would use the blog as a place to brainstorm life and law. This seemed to make the practice of blog-writing a bit less, well, blahhh. Here’s my thought of the day:
Recently, I spoke with a friend about the latest Ashley Madison scandal and how it relates to the work of a divorce lawyer. It made me reflect on how my thoughts have changed with respect to extra-marital sex or online hookup sites in general. I suppose, in the past, I would have taken some esoteric moral stance against anyone who might use sites like ashleymadison.com or Tinder, Grindr, Scruff, Adam-for-Adam, Manhunt, name-your-favorite-app—the list is practically endless. I might have even thrown around some fancy, theological-sounding verbiage to support my position.
I think, secretly, my condemnation would have merely been a veiled desire to taste of the forbidden fruit myself (I think that’s essentially what all judgments are at their core anyway). Today, though, I realize it’s unfair for me to make such pronouncements against people curious enough to open this Pandora’s box. Maybe it’s because I’ve come to think these sites might have a usefulness and serve a legitimate end (and because forbidden fruit is delicious).
Simply put, sex is kinda nice, and a lot of folks find themselves in relationships or marriages where sex is a total bore or, worse, altogether absent. Who can blame a person for looking elsewhere to fulfill a legitimate need and desire? No question there may be consequences to getting found out (i.e., you may lose an alimony claim!), but perhaps the fallout from being outed is worth it for them. Only that person can decide. Who am I to say? That’s between them and Ashley!
Takeaway: It’s tempting to think of everything (especially “sins” like adultery) in a simple, dualistic framework as either good/bad, right/wrong, or black/white. Reality isn’t quite so streamlined, however. If law school teaches lawyers anything, it’s certainly this.
It’s quite common for those entering the divorce process to misunderstand some basic vocabulary surrounding the subject. And understandably so, as it can all be a bit puzzling. One area of divorce law that causes some confusion at the outset concerns differences between “separation” and “divorce.” The two are distinct terms and have significant legal import, the more important of which, in many respects, is “separation.”
Most spouses beginning the transition of splitting up focus their attention on the end goal, namely, legal divorce. Many even understand the twofold prerequisites of a divorce in North Carolina: (1) one-year separation and (2) residing in the state for at least six months. Where some confusion arises concerns the legal significance of “separation” and what constitutes separation for purposes of fulfilling the one-year rule. This series of posts will explore an important aspect of the law concerning spousal separation in hopes of clarifying an oft-misunderstood and critical point of law.
At the center of this discussion, and of the law of divorce generally, is a short statute, which reads in part: “Marriages may be dissolved and the parties thereto divorced from the bonds of matrimony on the application of either party, if and when the husband and wife have lived separate and apart for one year, and the plaintiff or defendant in the suit for divorce has resided in the State for a period of six months.” N.C. Gen. Stat. § 50-6 (emphasis added). At first blush, the rule seems fairly straightforward. But what exactly does this mean? What constitutes living “separate and apart” for purposes of starting the one-year clock? Must the parties be in agreement as to the reason for a separation? Must both spouses know of the intention of the other when living in separate places? In a word, no.
A couple cases highlight some important propositions that flesh out the meaning of N.C. Gen. Stat. § 50-6. The first case, Beck v. Beck, can be quoted in its entirety. The opinion states (with some minor omissions):
One spouse “contends that in order to be entitled to a divorce [the other] must show that a marital separation for the statutory period was by mutual agreement or under a decree of court. This was true prior to 1937. In that year the divorce statute was amended so as to remove this requirement. During the past 35 years a husband and wife have been deemed to live separate and apart within the meaning of the divorce statute when: (1) they live separate and apart physically for an uninterrupted period of [at least one year] . . . ; and (2) their physical separation is accompanied by at least an intention on the part of one of them to cease their matrimonial cohabitation.” Beck v. Beck, 14 N.C. App. 163, 187 S.E.2d 355 (1972) (emphasis added).
The takeaway here is that only ONE spouse need have the intent to be separated for purposes of divorce. The other party may have no idea whatsoever that divorce is the reason for their spouse’s absence. Suppose, for example, Wife moves to another town for purposes of employment, secretly intending to separate from Husband because she ultimately wants a divorce. Husband may be completely in the dark with respect to Wife’s larger goal, and he may be surprised to get a complaint for absolute divorce a year later. Under Beck, though, this is entirely acceptable. As with any area of the law, however, there are exceptions to this rule. We can explore those in other posts. Suffice it to say, separation in North Carolina is never as straightforward a concept as it may seem, which we’ll explore in greater detail in Part II next week.
The following is a brief outline of steps to take when beginning the process of divorce and separation. There are several legal categories to be aware of when surveying the entirety of such an undertaking: (1) equitable distribution or dividing the marital estate, (2) spousal support and alimony, (3) child custody, and (4) child support. In essence, consider your divorce as comprised of these four pillars, each of which likely relates to the other.
Equitable distribution is, in sum, simply a way to divide marital assets and debts. To gain a complete overview of your estate, begin compiling a list of all debts and assets. This should include a list of all real estate, vehicles, and valuable personal property. Also, make a list of all deposit accounts you and your spouse have with banking institutions. Include in your list all securities and stocks, together with all retirements accounts (pensions, 401(k)s, etc.). Be exhaustive. You can never have too much information during this data-collecting phase. Be sure to include whose name is listed as an owner or title-holder (be it in your sole name, theirs, or jointly). This will be important when your divorce attorney begins assessing the data you've compiled.
Spousal Support and Alimony:
Spousal support may or may not be an issue in your separation and divorce. This area of the law is very fact-specific. To help you and your divorce lawyer assess the likelihood of a claim of spousal support, begin by using your annual income from all sources (W-2 income, 1099 income, gifts from family, trust disbursements, etc.). Do the same for your spouse. Next, you’ll want to survey your expenses. All this data will become important in determining whether there is a dependent and supporting spouse, both prerequisite findings for an award of spousal support. Finally, catalogue as much information about the standard of living you developed during the marriage so you and your divorce attorney can decide if other pertinent facts will preclude or bolster a claim for support.
For obvious reasons, child custody determinations are not as numbers-driven an area of law and, hence, are a bit more subjective. Maybe you’re seeking full custody or are hoping to get the children most days of a given week. Discussing the facts in your specific situation will help you and your attorney develop a schedule which best serves your needs and the interests of the children. Your divorce attorney will offer you some of the more prevalent schedules used in custody arrangements—be it a week-on/week-off, a 2-2-3, or an every-other-weekend scenario. It’s helpful to keep notes and journals concerning how the parenting happens, together with any events in the children’s lives you’ll want to use to support your parenting schedule position. Remember that the days of dads getting only a couple overnights every two weeks with the kids are no longer the norm. Depending on the jurisdiction and the judge, dads may be as likely as moms to have equal time with their children. Also be sure to discuss the differences between physical and legal custody with your attorney.
Once you’ve established the basic schedule (i.e., number of overnights with your children), the child support determination is fairly straightforward. North Carolina, in most instances, relies on Worksheet A and B. Depending on your setup, you’ll likely fall onto on of these two worksheets. Talk with your divorce lawyer about how your overnight schedules relate to the worksheet you’ll use. (There’s also a Worksheet C, but this often goes unused). Additionally, if you make beyond the statutory income threshold, you may require a child support determination outside the rubric of the worksheets. Health insurance premiums, daycare costs, and a couple other factors play into the worksheet formulations as well. Bottom line, keep a catalogue of these expenses (and of both parties’ monthly incomes).
Depending on your unique situation, your divorce may include all four of these categories or only a couple. You may even discover your situation involves none of them at all. If, for example, you have a very short marriage with little to no substantial assets, dividing the marital estate may not be worth the attorney fees involved in dividing things up. Every family situation is different. In sum, use this short guide as a springboard to beginning your new (and better) stage in life.
David is a Charlotte Divorce Lawyer and Family Law Attorney