There are a myriad of emotions and obstacles that one will experience while going through a divorce. The following post is intended to give a brief summary of the legal proceedings that one may encounter if they go through a divorce in Union County, North Carolina.
Regardless of the circumstances, the process should begin by meeting with an attorney that is experienced in the area of family law. At Zach Jackson Law, we focus primarily on family law matters. If you feel that a divorce is imminent, please call our office, and ask to schedule a one-hour consultation. If you have a prenuptial agreement, legal documents relevant to your situation, or compelling evidence, bring these items to the initial consultation. In your initial consultation, your attorney should gain a brief synopsis of your situation and begin to formulate an opinion on how your specific case should be handled. The process will generally be divided into five parts: (1) custody and visitation; (2) child support; (3) spousal support which includes post separation support and alimony; (4) equitable distribution; and (5) the divorce.
In a perfect world, the parties will come to an agreement on these matters amicably. The parties’ agreement can then be formalized in a separation agreement. An attorney with experience in family law should be retained to draft and execute this agreement. The separation agreement may be incorporated into the divorce decree. At this time, the separation agreement becomes more than a civil agreement between the parties; it becomes an order of the court.
If the parties cannot come to an agreement on all matters, the parties may be able to resolve at least some matters with a separation agreement. In order to resolve the remaining issues, it may be necessary to file a complaint. The complaint is a legal document that sets out the facts and legal reasons that the party believes are sufficient to support a claim against the opposing party. The spouse must be served with this complaint. The spouse may then respond with an answer and counter claims.
The complaint is the first step in eliciting the assistance of the courts to resolve your dispute. If you and your spouse wish to avoid the courts, but you have been unable to reach an agreement, you may wish to consider collaborative law. For more information about collaborative law, please check back in for my blog post on “Collaborative Law and Avoiding the Uncertainty of Court.”
Custody and Visitation
If there is a complaint for custody made, the parties are typically required to attend custody mediation. If an agreement is not reached, the parties will have a temporary custody hearing. In Union County, this is generally a one-hour hearing, which will be heard by a district court judge. Each side will have thirty minutes to make an argument to the court as to what they believe is in the best interest of the child. Each party will have the opportunity to testify, put on evidence, and cross-examine the opposing party’s witnesses. Each party will also have the opportunity to set out their case in an affidavit that will be given to the judge. After considering the evidence, the judge will then render a temporary decision.
The parties may elect to make the temporary custody order permanent or they may agree to modify it. If the parties are unable to reach a permanent agreement, they may return to court for a permanent custody hearing. There is no time limit on this permanent hearing, so each side may take as much time as they need to put on evidence and argue for what they believe is in the child or children’s best interest. The judge will then make a decision on the permanent custody of the children. This permanent order can only be modified if the parties agree, if either party violates the previous order, or if there is a substantial change in circumstances.
Child Support and Alimony
If there is a claim for post separation support and alimony, and the parties cannot reach an agreement, there will be a temporary hearing scheduled. In Union County, each side will be responsible for completing documentation demonstrating their income and expenditures. There will be a one-hour hearing. Each side will be given thirty minutes to present their case. After the hearing, the district court judge will render a decision. Again, the parties can agree to modify this agreement or they can agree to a permanent order. If they cannot agree, they may return to court and have a hearing in which the court will grant a permanent order.
If there is a claim for equitable distribution, the parties will be responsible for completing a financial affidavit setting out all of their debts and assets. The affidavit should clarify the approximate value of the property, whether or not the property is marital or separate, who currently has the property, and whom they think should get the property. The parties are typically required to attend mediation. If an agreement is not reached at mediation, the parties must have a hearing, and the district court judge will render a decision on how the property shall be divided. The judge will typically give each side fifty percent of the marital estate.
Finalizing the Divorce
Once the court has entered an order, each party is responsible for familiarizing themselves with the order and following it. If the parties agree to deviate from the order, in many cases they may. However, if a party deviates from the order without the other parties consent, the violating party can be held in contempt of court. The court may fine the party for their conduct, and in some cases, the violating party may be put in jail. If circumstances change, the parties may file a motion requesting the court to modify the order. Generally, it is very important not to deviate from the order until the court has modified the order.
After the parties have lived separate and apart for more than one year, they can file a complaint requesting the court to grant an absolute divorce. Typically, the party requesting the divorce will need to correctly prepare a variety of documents including a complaint, verification, civil summons, domestic civil action cover sheet, certificate of absolute divorce, request for setting, notice of hearing, and a judgment of divorce. If all of the documentation is not properly completed, the divorce may not be granted. Therefore, it is important to retain an attorney experienced in family law to assist you.
Of course, this brief summary is not intended to describe the path of every divorce. There are a myriad of possibilities, the process can be extremely complex, and in most cases, the stakes are extremely high. Therefore, it is critical to retain an attorney experienced in family law to guide you through the process. The rules change from county to county, so if you are going through a divorce in Union County, North Carolina, it is extremely important to retain an attorney that is familiar and experienced with Union County’s local rules.
If you or someone you know is going through a divorce, contact Zach Jackson Law and schedule a one-hour consultation. It is our goal to guide our clients through this process as peacefully and efficiently as possible. If we are unable to reach an amicable resolution, we are prepared to fight zealously to ensure your rights are upheld.