Marriage

What To Do When A Marriage Fails

Information provided by the NCATL Education Foundation

When a husband and wife face serious marital problems, they often have difficult legal and personal questions that must be answered. This document offers some suggestions and general rules of North Carolina law that can help a husband or wife answer legal questions.

Reconciliation

When a marriage is in trouble, a couple should first decide if they can resolve their problems agreeably and maintain the marriage. There are options:

They can resolve matters themselves in an honest and open manner.
They can employ the services of a neutral third party to mediate or counsel--a minister, counselor, or even a trusted friend can often help.

If mediation and outside help cannot resolve the marriage's problems, it is wise to consult a lawyer about the legal aspects of separation. It is important to remember that although attorneys can advise on the legal issues is separation and reconciliation, they are not marriage counselors.

Going to Court

Sometimes a husband or wife will need a court order when a marriage has dissolved:

If the couple cannot reach a settlement in a separation agreement;
If a spouse breaks one or more of the promises in the agreement;
If there is an emergency situation, such as child-snatching or violence in the home.

Several kinds of hearings can be held, including the following:

If child custody and visitation issues--decisions about the care, control, and custody of a child or enforcement of visitation rights--need to be resolved;
If there is a spouse or children who are victims of physical abuse;
If there is a minor child involved and there is not an agreement for child support;
If post-separation support is needed for a spouse who is not able to support herself or himself or if one spouse is at "fault" and caused the marriage's failure, which entitles the other to alimony;
If there is a need for divorce from bed and board (for a judicially ordered separation).

Property Division

After a separation occurs, either party may apply to the court for a division of marital property called "equitable distribution." Generally, all items of property acquired by the husband and wife during their marriage are considered marital property and are divided: real estate, cars, bank accounts, furniture, ownership interests in a business or professional practice, vested pension rights, and retirement plans.

Some items of property cannot be divided by a judge. For example, property acquired by either spouse before the marriage or by gift or inheritance during the marriage is generally considered separate property and is exempt from the division.

The law presumes that the marital property should be split evenly between the parties on the net value of each item. However, under some circumstances, the court may award a larger share of the property to one spouse. For instance, the wife may be awarded the house and car if she has custody of the minor children and needs these items for their care. Before making an award that divides the property, the judge, if requested, must look into all the facts such as tax consequences, contributions of each party to the marriage, child custody, separate property, and other factors.

A judge can now enter an order that divides marital property before a divorce has been granted. However, the couple can avoid a court ordered division of property by agreeing on a division of their own. These decisions can be made at any time before or after the initial separation, but the terms must be included in a properly executed separation agreement.

Domestic Violence

Although not necessarily incident to a separation, a husband, wife, or child may become the victim of physical violence at the hands of the other spouse or a parent. North Carolina has a domestic violence law that can be a powerful remedy for a victim who has suffered bodily injury or the threat of or attempt at serious bodily injury. The judge has the power immediately to remove the offender from the home or require the offender to provide and pay for suitable temporary housing for the victim(s). A restraining order can be issued, and in appropriate cases, the order may address temporary custody, child support, and reasonable attorney's fees. After the initial emergency order, the case is stet for a hearing within 10 days to resolve all issues of the case concerning domestic violence.

Alimony

Post-separation support can be granted by the court when there is a need for spousal support, and alimony when the spouse is in need and when the person to pay it has committed some wrong or "fault," such as abandonment, adultery, personal indignities, (or what is sometimes called by non-lawyers severe,prolonged "mental cruelty"), and so on. It is essential that the party claiming support be actually dependent on the other for support or in need of such support. The other party must be the supporting spouse; that is, the one able to pay such support. And the supporting spouse, of course, must be found to have committed at least one of the "fault" grounds for alimony listed in the statute.

A hearing on post-separation support is held before a judge, and the support last only until a permanent alimony hearing or until it is otherwise terminated. There are three aspects to an alimony hearing:

There must be determination on "fault," and this may be before a jury. If the jury determines that there is no fault proven, the trial ends and no alimony can be awarded, even to a very needy spouse.
Only the judge decides the issue of whether one party is the "supporting spouse" and one is the "dependent spouse." Notice that there is no preference given by law to either men or women, and both husbands and wives may claim alimony.
If the first two issues are resolved favorably for the spouse claiming alimony, the final issue is a determination of how much alimony should be paid. This depends on the income and estates of the husband and wife, each one's reasonable needs, and the accustomed standard of living of the dependent spouse.

Alimony ends upon the remarriage of the person receiving it or, if ordered by a court, upon the death of either the husband or the wife. If the party ordered to pay refuses to do so, the intended recipient must go to court for a contempt order. Garnishment of wages and other remedies for alimony is allowed in North Carolina.

Divorce

Although incurable insanity and living apart for three consecutive years constitute grounds for divorce, the most common ground in the North Carolina statutes is one year's separation. This is the "no-fault" divorce of North Carolina, a state which does not recognize grounds such as "mental cruelty" or "irreconcilable differences" found in other states. After the couple has been living apart for over one year with the intention of living apart permanently, either one may file for divorce, serving a copy of the "complaint" and "summons" on the other spouse by certified mail (return receipt requested), personal acceptance, or through the county sheriff. The judge will grant the divorce if the other party fails to answer the complaint within 30 days after being served, if he or she waives the right to service and answer, or if the other party files an answer that does not deny the separation of over one year.

Child custody and support can be determined before, during, or after a divorce hearing. Alimony and property division rights, however, may be jeopardized or lost by the granting of a divorce. You should think seriously about the legal impact of the divorce on these rights and consult an attorney about a divorce, even though it may appear to be simple and "uncontested."

Separation Agreements

When marital differences cannot be settled, the couple should decide whether or not to live apart from each other. It may be important to consult a lawyer before either one leaves the marital home.

No law requires a couple to prepare and sign paperwork such as a separation agreement when they separate.
No separation document is needed in divorce court to prove that the couple has been separated. There are, however, many reasons why a husband and wife should seriously consider a separation agreement if they decide to live apart.
Oral promises at the time of separation (concerning the rights and duties of the couple) are hard to prove and difficult, if not impossible, to enforce.
Subjects such as child custody and support, property division, spousal support, possession of the marital residence, and tax matters can be written down, if agreed upon , in a formal separation agreement prepared by a lawyer. This agreement is a contract between the husband and wife in which they set out their responsibilities for these difficult issues.
A separation agreement can be enforced by court order if one party breaks a promise in it. No one can force the husband or wife to sign such an agreement, however; and it is not contempt of court to violate a separation agreement that is not a part of a court order. A lawyer should always be retained to prepare such an agreement and supervise its signing by the couple (or to review an agreement prepared by the other spouse's attorney).

The North Carolina Academy of Trial Lawyers Education Foundation, Inc.

The North Carolina Academy of Trial Lawyers Education Foundation, Inc., a non-profit, non-partisan association of attorneys who regularly try cases in court, presents this document as a courtesy of the Academy and your local attorney. We hope that it will assist you in understanding both the law and your role as a party in a court case.

The Academy's public education programs work to improve our court system in order to bring fairness and justice to all North Carolina citizens, as well as to increase both understanding and appreciation of the American judicial system and the right to trial by jury.

If you have further questions about divorce, separation, alimony, child support, or property division, you should consult an attorney. It is suggested that you write down your questions prior to meeting with an attorney to ensure that all your questions are answered directly and promptly. Questions concerning child custody and support are outlined in the Academy's brochure, "Child Support and Custody."