Separation & Divorce: FAQs

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Jim Siemens

Certified Family Law Specialist

FAQ to Asheville Divorce Lawyer

After a combined 20 years of consultation with people contemplating separation and divorce, a mental inventory of frequently asked questions (FAQs) has crystallized.  We intend to add more FAQ entries to this blog and invite you to share with us any questions you may have.  Here are some of the most common questions we encounter during an initial consultation:

What is a legal separation?

In North Carolina, you are legally separated when you no longer live under the same roof with your spouse, and you have the intent to remain separate and apart.  It’s that simple but the simplicity is deceiving.  Once you are legally separated, the clock starts ticking on your eligibility for divorce, but all of the other issues that rise from the fact that you are married remain to be resolved.  Although no legal document is necessary to accomplish a “legal” separation, legal documents are necessary to resolve property (and debt) issues, support issues and child custody issues.

How do I accomplish a legal separation?

This is the toughest question.  When we consult with clients, we try to understand how far gone the marriage actually is.  If a client is on the fence, and there has been no attempt at counseling, we may suggest that and point the client in the right direction.  If the client is clear that separation is the goal, we spend time talking about the right approach to accomplish a legal separation.  We think the best way to initiate a separation is through an honest conversation with your spouse.  It won't be a happy conversation, but if you can bring your spouse to recognize that separation would be best for all involved, the remainder of the process is likely to be easier.*

Someone has to leave the marital home in order for a separation to occur.  Calm conversations about how this can occur are best.  If that is not possible, you need to consult with a lawyer.  Domestic violence restraining orders can be used to initiate a separation, but they should only be used to prevent violence between spouses.*  There is also a cause of action known as divorce from bed and board, but that action can only be brought in limited circumstances.

What about abandonment?

Our answer to this question will tell you a little bit about our perspective.  Abandonment is a form of marital misconduct that a Judge can consider in entering an alimony judgment.  In Jim's 15 years of practice, he has observed no Judge cite abandonment as a factor influencing his or her decision to award or deny alimony.  It could happen, and we don't discount the fact that the alimony statute references abandonment as a factor.  But it could be that the concept is a bit outdated, at least as it's defined in the statute.  Abandonment is defined as the termination of the marital relationship without justification.

The definition does not encompass the type of marital misconduct that could, in Jim's opinion, influence a Judge.  That is, financial abandonment, and parenting abandonment.  If you or your spouse leaves the marital household to initiate a separation, the household cannot be abandoned financially.  Children likewise cannot be abandoned.  Marriages fail, and spouses separate, but in initiating a separation, care must be taken to ensure that financial responsibilities and parenting responsibilities are met.

What type of documentation do I need to provide?

In an ideal world, you will bring your divorce lawyer a copy of your prenuptial agreement, together with an exhibit that fully illustrates each spouse’s assets and debts at date of marriage.  In addition, you will bring documentation that provides an inventory of assets and debts at date of separation.  Finally, you will bring current income information that aids your lawyer in analyzing support claims.

Most people who come to see us do not have a prenuptial agreement, so we start an analysis of the equitable distribution claim with a discussion of what assets and debts were owned by each spouse at date of marriage.  This is important because assets and debts owned prior to marriage are generally defined as separate property, not subject to equitable distribution.  For instance, if you had retirement savings at date of marriage, and those retirement savings can be traced; those retirement savings should not be subject to division.

Date of separation statements are equally important.  The marital estate “freezes” at date of separation.  Passive market activity, and debt service post date of separation, is factored in equitable distribution but post date of separation, your active efforts to earn income, and the assets you acquire with that income should be characterized as your separate property.

Tax returns are important to bring.  Bring personal returns as far back as you have them.  Bring corporate returns and partnership returns if those have been filed during the course of the marriage.  Personal returns will help your lawyer determine what support should be paid, or received.  Corporate returns may be useful if a partnership or corporation needs to be valued for equitable distribution purposes.

If you have appraisals for real or personal property, bring those documents too.  Again, date of marriage and date of separation values are critical, but appraisals at any point during the marriage will be useful, if only to gauge the reliability of subsequently obtained appraisals.

Until your lawyer and opposing counsel have a complete picture of the marital estate, your case should not, and probably cannot, be resolved.

Does it matter that my spouse is involved with someone else?

Adultery is a form of marital misconduct in North Carolina.  This form of marital misconduct, like abandonment, is defined under the alimony statute and is considered by a court in awarding alimony.  It is not considered in an equitable distribution case.

Marital misconduct is generally not relevant in an equitable distribution case.  The law presumes that the marital estate (assets and debts) will be divided equally, despite the fact that a spouse has been unfaithful.  This particular realization often comes as a shock to clients.

*  A separate entry regarding the issue and implications of domestic violence in a relationship will follow this entry. This entry in no way implies that, if your partner is abusive, you should discuss separation prior to consulting with (a) the local domestic violence protection agency (in Buncombe County, Helpmate, (828) 254-2968; elsewhere, call the National Domestic Violence Hotline, (800)799-SAFE) and an attorney.  Nor does this entry imply that a domestic violence protective order should be sought in the absence of abuse.