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South Carolina men’s divorce attorneys provide answers to frequently asked questions with regards to the divorce process and divorce laws in partnersuche deutsche in spanien South Carolina.

What are the grounds for singles saarland 100 kostenlos divorce in South Carolina?

South Carolina recognizes no-fault and fault based grounds for divorce. For a no-fault divorce, the parties must have linden single handle kitchen faucet lived separate and apart without cohabitation (not just in another room) for over one year.

For a fault-based divorce, South Carolina recognizes (1) Adultery, (2) Habitual Drunkenness or Drug Use, (3) Physical Cruelty, and (4) Desertion. However, it should single rhein neckar kreis be noted that Desertion is rarely used as a ground for divorce since the parties must have lived separate and apart without cohabitation, just as is the requirement for a no-fault one-year continuous separation divorce. Parties may* obtain a divorce 90 days after the date of single rhein neckar kreis filing if a fault-based ground exists and the burden of proof is met to show that the fault-based ground exists.

*Parties may be able to obtain a divorce 90 days after the date of filing if ALL issues in the case have been resolved on a final basis. It is always important to note that attorneys do not have control over the court docket scheduling.

What is a divorce going to cost me? Can I afford it?

The cost of your divorce is determined on a case by case basis. It is important to look at your legal representation for your divorce as an investment to protect yourself, your children and your finances in the future.

Do I really need to hire an attorney?

Hiring an attorney is better than trying to navigate through the divorce process on your own. Although you are not required to have an attorney in South Carolina, it is not a good idea to attempt to handle your divorce by yourself. The advice and knowledge of an attorney is crucial to protecting your interests in the future.

Does South Carolina grant divorces based on marital fault?

Yes. South Carolina recognizes (1) Adultery, (2) Habitual Drunkenness or Drug Use, (3) Physical Cruelty, and (4) Desertion.*

Marital Fault is also a factor that may be taken into consideration in regards to equitable division of marital property and spousal support/alimony.

*Desertion is rarely used as a ground for divorce since the parties must have lived separate and apart without cohabitation, just as is the requirement for a no-fault one year separation divorce.

Can I get maintenance in South Carolina or will I have to provide maintenance to my spouse?

In South Carolina, the following statutory factors in determining whether a party should or should not be awarded spousal support. See S.C. Code § 20-3-130(C)(1-13).

(C) In making an award of alimony or separate maintenance and support, the court must consider and give weight in such proportion as it finds appropriate to all of the following factors:

(1) the duration of the marriage together with the ages of the parties at the time of the marriage and at the time of the divorce or separate maintenance action between the parties;

(2) the physical and emotional condition of each spouse;

(3) the educational background of each spouse, together with need of each spouse singles saarland 100 kostenlos for additional training or education in order to achieve that spouse’s income potential;

(4) the employment history and earning potential of each spouse;

(5) the standard of living established during the marriage;

(6) the current and reasonably anticipated earnings of both spouses;

(7) the current and reasonably anticipated expenses and needs of both spouses;

(8) the marital and non-marital properties of the parties, including those apportioned to him or her in the divorce or separate maintenance action;

(9) custody of the children, particularly where conditions or circumstances render it appropriate that the custodian not be required to seek employment outside the home, or where the employment must be of a limited nature;

(10) marital misconduct or fault of either or both parties, whether or not used as a basis for a divorce or separate maintenance decree if the misconduct affects or has affected the economic circumstances of the parties, or contributed to the breakup of the marriage, except that no evidence of personal conduct which may otherwise be relevant and material for the purpose of this subsection may be considered with regard to this subsection if the conduct took place subsequent to the happening of the earliest of (a) the formal signing of a written property or marital settlement agreement or (b) entry of a permanent order of separate maintenance and support or of a permanent order approving a property or marital settlement agreement between the parties;

(11) the tax consequences to each party as a result of the particular form of support awarded;

(12) the existence and extent of any support obligation from a prior marriage or for any other reason of either party; and

(13) such other factors the court considers relevant.

The court may or may not award spousal support/alimony to a party after taking the following factors into consideration.

Can I change my name at the time of divorce in South Carolina?

Yes. You may change your name at the time of divorce. You must request a name change in your pleadings to put the court on notice that it is an issue before the court. At the time of divorce, you must testify under oath that you are requesting a name change for personal reasons and answer a series of questions that verify that you are not changing your name to avoid criminal charges, bankruptcy, a sex offender registry, etc. See S.C. Code § 15-49-20.

Can I get an annulment in South Carolina?

South Carolina may allow a marriage to be annulled if at least one of the following factors is met:

  • Duress – One spouse was threatened or coerced into the marriage
  • Fraud – One spouse lied or deceived the other spouse about an essential aspect of the marriage
  • Bigamy – One spouse is still currently married to another person
  • Incest – The spouses are closely blood-related
  • Mental incompetence – One spouse did not have the mental competence to consent to the marriage
  • Underage – One or both spouses are under the age of 16
  • No cohabitation – The spouses never lived together (this may include lack of consummation of the marriage)

*It is important to note that these factors are not “cut and dry.” Several additional factors and circumstances may be taken into account as to whether an annulment is granted. Family Court judges may exercise broad discretion in their decisions after considering the specific facts of a case and relevant law.  Annulments essentially deem the marriage void as if the marriage never happened, whereas a divorce ends a legally valid marriage.

When can I file for divorce in South Carolina?

You may file for divorce once you have a ground for divorce (see grounds for divorce discussed above).

However, in South Carolina, you may file a Separate Support and Maintenance Action before you have a ground for divorce. The main requirement for a Separate Support and Maintenance Action is that the parties are living separate and apart without cohabitation. For example, you may not have a fault-based grounds for divorce, but you and your spouse have been living separate and apart without cohabitation, but you have not reached the one-year bench mark as required in a no-fault divorce. In this example, a Separate Support and Maintenance action may be filed to address the same issues involved in a divorce action. For further information, please schedule an initial consultation with our South Carolina office to discuss the importance of filing an action as soon as possible.

When is my case going to be over?

The duration of your case depends on many factors and is specific to each case. In general, if the parties come to an agreement and settle all issues quickly, then typically your case will not last as long as it would if your case goes to trial. However, there are several other factors that contribute to the how long your case will be ongoing that you should address when you schedule an initial consultation with our South Carolina office.

Do I have to go to court?

Yes. You should be present in court for your case. There are certain circumstances where you may be able to authorize your attorney to attend on your behalf, but in general you should be present in court.

If attempts to serve my spouse do not work, what is my next step?

In general, if several meaningful attempts have been made to properly serve your spouse (for example, service at their last known address, job, etc.) have failed, then the process server may submit an affidavit of due diligence. At that point, service by publication can be run in the local newspaper for 30 days. If your spouse does not respond within that time period, then the case can proceed accordingly.

*Process service is a very important part of the case so that all parties are given notice of the lawsuit. However, if after many attempts fail to locate your spouse, this does not necessarily mean your case cannot move forward.

At what point during the process can a spouse remarry or start dating?

After the final divorce decree is signed by the judge. While many people believe that once they are separated from their spouse they are free to start dating again. There is no “legal separation” in South Carolina. You are still married to your spouse until the judge signs your divorce decree. On the same note, you are still married, so until you are divorced you cannot marry another person as it would constitute bigamy.

If you start “dating” while you are still married, there is an argument for adultery against you. This could work against you in terms of equitable division of assets, as it is a factor the court considers (see above). More importantly, if you are a candidate for spousal support/alimony, even the perception that you are “dating” or having sexual relations while you are still married could bar you from receiving spousal support/alimony.

What if my spouse does not want the divorce?

Your spouse cannot deny you a divorce. If you meet one of the South Carolina statutory grounds for divorce, then you can proceed whether your spouse is happy about it or not. That being said, all issues must be resolved before a final divorce decree can be issued.

Do the other issues – support, custody, alimony, and property – have to be decided before the divorce is final?

Yes. All issues must be resolved before a divorce is finalized in general. There are some circumstances where judges will bifurcate issues (divide the issues), but this is not very common because there are many legal pitfalls that could arise. You should contact our South Carolina office for further clarification of these potential pitfalls.

Although these issues should be resolved on a final basis in a divorce decree, matters involving child custody, child support and alimony may be modified upon the showing of a substantial change in circumstances after the divorce decree was finalized. The division of the marital estate is permanent after the divorce decree (or Separate Support and Maintenance Final Order) is in place.*

*In some cases issues may be appealed or reconsidered. Please schedule a consultation to discuss the specific facts of your case.

How long do I have to live in South Carolina to obtain a divorce?

In short, if both parties have lived in South Carolina for over three (3) months, then South Carolina has personal jurisdiction of the parties. If one of the parties is out of state, and the other party lives in South Carolina, the South Carolina resident must have lived in South Carolina for a period of over one year. Other factors may change this answer so it is important to address specific jurisdiction issues with your attorney.

After I file for divorce, do I have to continue to live in South Carolina?

In general, no, if jurisdiction was established in South Carolina when you filed. Certain case-specific factors/issues may change this answer so it is important to contact our South Carolina office to address this issue.

What if I am in the military and out of state?

If you or your spouse is a resident of South Carolina, then South Carolina may have jurisdiction (see above). This is an issue you should address in your initial consultation in our South Carolina office.

What forms do I need to file for a divorce in South Carolina ?

You will not be responsible for filing anything on your own while you are represented by Cordell & Cordell. You will be properly advised and informed of your case and your attorney will let you know what certain documents you will need to provide to your attorney to assist in your litigation.

How and where is a divorce complaint filed in South Carolina?

In South Carolina, a divorce complaint is filed in the Clerk of Court’s office where jurisdiction is proper. Typically the complaint is filed in the county where the Defendant resides. Either the attorney, the attorney’s staff, or a courier will file the complaint with the Clerk of Court in the respective county.

How do I serve the divorce complaint on my spouse? How long do I have to wait to receive my divorce?

You will not be the one to personally serve a divorce complaint on your spouse. Parties and attorneys representing the parties in a case are not proper process servers. Our firm will take care of the service process. The waiting period to receive your divorce depends on many factors (see above).

How is a divorce granted in South Carolina?

A divorce is granted when all issues in your divorce case have been resolved on a final basis and at least one of the parties has proven that a ground for divorce exists to the court’s approval. Parties may resolve all issues through their attorneys and come to a settlement agreement, or the parties may need to go through mediation to come to a settlement agreement. If the parties are unable to agree on a settlement, the matter will be set for a trial and a Family Court Judge will make a final ruling on the issues after hearing both parties’ arguments/testimony.

What typically happens if I go to court to obtain my divorce myself?

It is unlikely that you will have protected your interests, your children’s interests, and your financial interests. While anyone can look up the law on the internet, the application is much more complicated. It is never a good idea to do it on your own.

How do I prove fault for divorce in South Carolina?

South Carolina recognizes fault-based grounds for divorce and considers marital fault as one of many factors when considering equitable division of the marital estate and spousal support/alimony.

While proof of marital fault is within the broad discretion of the presiding Family Court Judge in your case, the following general elements are needed to prove the following fault-based grounds:

Adultery – To prove adultery, the burden is on the spouse alleging adultery that the adulterous spouse had (a) Opportunity and (b) Inclination to commit adultery.

That being said, it is not necessary to have pictures, video, etc. of the adulterous spouse being caught in the actual “act” of sexual intimacy.

At least, it should be shown that the adulterous spouse had the opportunity to cheat (i.e. were in a private place alone for “opportunity”) and (i.e. were seen affectionate towards each other; kissing, hugging, holding hands for “inclination”). Proof that the adulterous spouse and a paramour spent the night together in a hotel room could be good proof to cover both elements.

Habitual Drunkenness or Drug Use – To prove Habitual Drunkenness and Drug Use, the burden is on the spouse alleging Habitual Drunkenness and Drug Use to show that their spouse’s drinking or drug use contributed to the breakdown of the marriage.

Physical Cruelty – To prove Physical Cruelty, the burden is on the spouse alleging Physical Cruelty. Typically, the abuse must be physical and occur on more than one occasion, but additional factors should be considered. There is case law that addresses specific facts in different cases that can be considered as related to the facts of your case.

Can a couple become legally married by living together as man and wife under South Carolina’s laws (common law marriage)?

South Carolina recognizes Common Law Marriage. The Family Court has broad discretion in considering whether a common law marriage exists. While many facts and circumstances are considered, in general, a common law marriage is recognized when the parties have cohabitated together for an extended period of time and both parties presently present themselves as a married couple. Again, there is not a “cut and dry” answer. You should contact our South Carolina office to receive more information specific to your situation.

 

If you are a member of the military (or married to someone who is) and you're looking to separate from your spouse, there are some things to be aware of.

Separation Versus Legal Separation

People often confuse being separated with a legal separation. This article explains the differences between these concepts and provides a basic overview of military divorce.

Separation

Sometimes, couples (both military and civilian) that are going through a rough patch in their marriage choose to separate before pursuing a divorce. They may want time to see how they do living apart or to seek counseling to save their marriage. During a separation, most couples will live apart. If they can’t afford to live apart, they may act as though they are separated while living in the same home - as roommates without cohabitation (sexual relations).

When it becomes clear that the separation is going to last for some time or that the next likely step is divorce, a couple may enter into a “separation agreement,” which is a written agreement that spells out how the couple wants to handle certain issues during their separation, including child custody and support, alimony payments (if any), and the division of property.

Being separated, or entering into a separation agreement, does not mean that a couple is no longer married, is “legally separated,” or “divorced.” It just means the couple is currently separated. Similarly, if they have a “separation agreement,” it just shows that they are currently separated and have made some agreements to help spell out rights and responsibilities during this time period.

If the couple decides to legally separate or divorce later, they may be able to incorporate their separation agreement into a judgment of legal separation or divorce.

Legal separation

A “legal separation” is a court order, which declares that a couple is legally and officially separated. Couples that choose legal separation typically do so for religious reasons. For example, some couples may belong to a religion that prohibits divorce. Others may want to keep health insurance in effect for their spouse, which would normally terminate after a divorce. If you’re considering a legal separation for health insurance reasons, be sure that a legal separation won’t count as a disqualifying event.

If you are legally separated, you are still technically married and can’t remarry. You can only remarry if you obtain a divorce. However, the process for legal separation is almost identical to a divorce; you must obtain a court judgment regarding all of the issued you would have to decide in a divorce: alimony, child support and custody and property division.

It’s important to note that in all of the above scenarios - a trial separation, a separation with a separation agreement, a legal separation, and even during a divorce proceeding - a couple is still legally married; the only way to end a marriage is to obtain a final divorce decree.

Can Military Spouses Date Once they are Separated or Legally Separated?

One key difference between civilian separations and military separations is that in most states, civilian spouses who are separated or legally separated can date someone other than their spouse without violating any laws. In other words, it’s not a crime in most states to date someone else if you’re separated from your spouse.

But, if a military spouse dates someone other than their spouse before being legally divorced, they risk being charged with the crime of adultery. Article 134 of the Uniform Code of Military Justice (UCMJ) makes the act of adultery a crime if the following legal criteria are met:

  • the service member had sexual intercourse with someone other than their spouse
  • the service member or their sexual partner was married to someone else at the time of the act of intercourse, and
  • under the circumstances, the conduct of the service member was contrary to good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.

If you are in the military and you date someone other than your spouse while your divorce is pending or even after you are “legally separated,” you are risking criminal charges. If you get caught, you may try to argue that you were no longer “married” because you and your spouse were living separate and apart, or were legally separated, but that argument is not necessarily going to succeed. As stated above, the only way to end your marriage is through divorce. So, until you have an order terminating your marital status, you are still legally “married” and not really free to date anyone else under military law.

The only sure way to avoid a criminal charge of adultery under the UCMJ is to wait until a state court grants you a final divorce decree, thereby making you “single” again.

How Military and Civilian Divorce and Separation Differ

Military divorce and separation issues are fairly complex because they may be governed by a combination of military codes, state divorce laws and Federal statutes. For example, military laws and Federal statutes will determine the division and/or distribution of military pay, military benefits (retirement and health), and certain types of property.

In contrast, the laws of the state in which the divorce proceeding is filed (usually the state where one of the spouses has resided for the requisite period of time) will govern how the divorce proceeds and how most of the divorce-related issues are decided, including child custody and visitation, child support, alimony and the division of certain property and debts.

(See to learn more about it).

Why You Need a Civilian Lawyer

Although many of the laws applied in a military divorce will be the same as those in a civilian divorce, there are still some major differences, so you should hire a civilian lawyer to represent you in your divorce. Make sure your civilian divorce attorney has extensive experience with military-related family law, including a strong understanding of the (SSCRA) and the (USFSPA).

Although military personnel and their family members have access to free legal services provided by the Judge’s Advocate General’s Corps (military officers who are also lawyers), military lawyers are not usually familiar with state divorce laws. Every state has its own unique set of divorce laws that govern divorce actions filed therein, so consulting with a JAG attorney will be of little use to a military member going through a divorce.

Civilian attorneys who specialize in family law know their state’s laws. Therefore, it is essential to hire a civilian divorce attorney who is an expert in local family law matters.

Many people are often confused on how to file for separation in North Carolina.  Every state has different laws related to separation.  This article is intended to make the process of legal separation easier to understand for NC residents.

Physically separated under the eyes of the law means that you and your spouse live in separate homes.  If you have a situation in which you have two homes on the same property or a home that is divided and has totally separate living quarters whereby neither party would ever see the other or share any rooms, this may be sufficient. However, your safest bet is to move into a totally separate residence at a separate location.

The other component of a separation is the intent of at least ONE party to be separated. If the parties stop living together and each person maintains his or her own home, it is not necessary that both parties agree on or want the separation. All it takes is the intent of one of the spouses to separate and to cease living together.

In the state of North Carolina, a couple must be legally separated for one year and a day before they can file for divorce.  There is no need to have a separation agreement or file anything with a court for the legal separation to take place. The criteria for the separation is explained above.

This is probably one of the most commonly asked questions…When can I start dating after I separate from my spouse? This is tricky for many reasons.  There are two different scenarios in which we must examine.

1) The person you want to date now was someone you had a relationship with pre-separation

Whether you had sexual relations with the person or not this can create problems. If you start dating the person immediately following a separation and suspicions were there, then of course this will cause your spouse and his or her attorney to dig further. If you actually did have sexual relations with the person, then post acts of sexual misconduct can be used to corroborate allegations of pre separation misconduct.

Why does this matter? If there is an alimony claim involved and you are the spouse that needs money and you have had a sexual relationship with a 3rd party prior to separation, then your alimony claims is barred if this can be proven in court. If you are the spouse that would pay money to the other spouse, then this conduct bolsters the other side’s claim.

Also, people often forget that a sexual relationship with a third party while you are married regardless of whether you are separated is still technically adultery which is a minor criminal offense. Rarely is this every charged but it is still something to be aware of.  It is also is another allegation that can be used in court to bolster either sides claims.

2) You start dating someone after the separation that you did not have any relationship with pre-separation

This wouldn’t necessarily hurt your case if you did not have illicit sexual relations with the person before you separated. But it is still adultery as stated above to have sex with a third party while you are still married even if you are separated.

However, dating after separation before legal documents are signed either by agreement or order of the court, usually tends to complicate matters. Divorce is already an emotional situation and add in a new relationship and feelings get hurt and emotions run even higher. And if the person you are dating is spending the night when your children are present, a judge very well many not like this and it could affect how much time you have with your children if you have to go to court. Judges like stability and consistency for children and allowing a new person to spend the night and immediately become part of a child’s life so soon after a separation rarely looks good in court.

Yes, and this is done via a divorce from bed and board which is a court-ordered separation of the parties.  The parties remain married until an absolute divorce is obtained but a divorce from bed and board grants the parties a legal separation.

Most of the time parties separate on their own accord and a divorce from bed and board is not sought by either side. A divorce from bed and board is rarely granted or pursued by separating individuals.

Oftentimes you may see allegations for the grounds for a divorce from bed and board in court filings but rarely does one side pursue a hearing on the matter.

The statute does not specifically allow a court to give possession of a marital home if a divorce from bed and board is granted, but in some cases a judge will give possession of the marital home to one party.

If a divorce from bed and board is granted, then you lose inheritance rights that one has solely by virtue of the marriage such as a right to intestate succession in the estate of a spouse or a year’s allowance to name a few.

Oftentimes, the parties do nothing and divorce after a year or work out their issues via a separation agreement which addresses the issues that a divorce from bed and board would allege.

Spouses are free to reconcile at any time after they separate.  Reconciliation occurs when the spouses voluntarily renew the marital relationship.

The primary ground for which divorces are granted in North Carolina is based on a separation of a year and a day. The policy behind the year waiting period was to give spouses a chance to assess if they really did want to go through with the divorce.  The waiting period often frustrates people because in many other states the waiting period for obtaining a divorce can be as little as a few weeks.

It does happen more than one would think that spouses do reconcile before the year is up.  If the spouses do truly reconcile, then a new one year waiting period is required.  Isolated incidents of sexual relations is not usually considered a reconciliation. Or spending time together on a sporadic basis is typically not considered a reconciliation. However, if you do truly want to separate it is best to avoid this type of conduct to eliminate any question about your separation status.

What is a Separation Agreement?

Often, just prior to or during separation, people consult with attorneys about the separation process and frequently hire attorneys to draft their Separation Agreement and Property Settlement papers. Within these separation agreements people often outline how their will be divided, how much, if any will be paid, how will be arranged, and what amount of will be paid. A separation agreement can contain any one or all of the issues.

The only issue pertaining to the end of a marriage that cannot be contained in a separation agreement is the itself. The divorce can be obtained after one year and one day of separation in North Carolina.

are papers, which once signed by both parties involved, are binding as contracts. It is always in your best interests to meet with an attorney to discuss your rights and to make sure that you understand the separation papers before signing them.

Settlement: the most attractive option

North Carolina is fairly unique in allowing parties to keep support, property and custody issues from ever coming into court. In other states, these issues are generally submitted, at a minimum, for court approval at the time of divorce. As already mentioned, except for the which must be done in this state by a judge, all of the remaining four issues can be settled in North Carolina between husband and wife privately once they have fulfilled the required separation period. If any of these issues is not settled by private agreement, such issues could be decided by a judge publicly if either spouse initiates and proceeds with litigation.

Once the separation is in effect, the vast majority of married partners in North Carolina opt for private settlement regarding custody, support and property division, given that most people can resolve their differences without the intervention of a judge. You should keep this fact in mind, because statistics nationwide predict that more than ninety percent of all couples will negotiate a settlement when they break up their marriage.

Such a settlement will usually be embodied in a document, or contract, known in the North Carolina of the 1990s as a “Separation Agreement and Property Settlement.” From the Sample Separation Agreement, you will notice that these contracts usually follow a certain format: an introduction to the parties, some recitals about why the contract is being entered into, separate articles devoted to various topics such as, custody and so forth. This is not the only format that can be used, but it is a commonly used format.

In a minority of cases in which litigation had begun but the parties resolved the issues through settlement prior to having a trial, the settlement might also be embodied in a court document known as a “Consent Order.” A consent order is simply the agreement of the parties, signed by both the parties (and sometimes their counsel) and a judge. Consent orders are different from regular court orders, in that a consent order would reflect the terms that you and your spouse work out between you whereas a regular court order would reflect a judge’s rulings on all the issues that have been tried in his or her court.

You might also agree, even though no one had previously initiated litigation, to put all or part of your settlement into a consent order because of some perceived advantage of a court order over a contract in your particular case. For example, a court order — unlike a contract — is enforceable through the court’s contempt powers.

There is also a higher standard imposed in North Carolina for modifying custody and child support orders than the standard used for obtaining an initial judicial declaration as to custody and child support. The required showing to modify an existing custody or support order is one of “changed circumstances.” In general, showing changed circumstances can be a difficult burden to meet.

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Why settlement is preferable

Settlement is preferable in almost every case for any number of reasons. In almost all cases, resolution through settlement is less costly, less prolonged and less emotionally draining than litigation. The emotional strain of court proceedings is felt, moreover, by each spouse (regardless of who initiated the litigation) and also by the children, by other family members, and by friends and work associates who interact with the litigating spouses.

Divorce — even without litigation — is already a major emotional stress on any family. The changes in family living arrangements during the separation process alone causes temporary adjustment problems for the most sturdy of individuals. Added to such changes is all the uncertainty involved in allocating family financial resources that once went to one intact family unit and must now stretch to meet the needs of two households.

It is, then, little wonder that many families feel crushed by the extra emotional wear and tear of having to deal with court papers, including the burdensome discovery process of sharing written documents and answering written or oral questions, the selection and interviews of potential witnesses, and all the anxiety of formal court proceedings. Litigation is enough of a strain when it doesn’t feel like the whole web of one’s life is falling apart all at once. When one’s concept of who one is and what the future will hold is being altered by separation and divorce, sometimes radically altered, then litigation is almost more than someone can bear.

Another disadvantage to litigation is that the judge, and not either of the contestants, dictates the result. Once your case is litigated, you lose control over the process even when you think you (and your attorney) may be influencing the judge. The outcome of litigation is, moreover, never a real victory for either side. Each side loses from having had to go through adversary proceedings. It’s not only parents who suffer from courtroom proceedings. The children will be traumatized as well, partnersuche deutsche in spanien whether or not they ever step foot in the courthouse. Regardless of your reasons for the separation, it is almost always advised that you try to settle out of court.

Just as important as minimizing emotional and financial devastation at a time of major personal crisis, settlement can be custom-tailored to a family’s interests and needs in a way that may not occur in the bureaucratic judicial system. That system cannot know your personal priorities and your family’s special customs the same way you and your spouse know those priorities and customs.

The judicial system is, on the whole, conservative in fashioning remedies. The system will not provide the kind of creative solutions that you and your spouse might create on your own, provided you both have the stamina necessary for negotiation and the capacity to be flexible. For all these reasons, you want to go to court only as a last resort, when nothing else looks like it will work.

Regardless of whether spouses can settle or they are forced to litigate, the independent nature of custody, support and property issues in North Carolina can drag out the ultimate resolution of all issues arising from separation. For example, custody can and might be resolved in North Carolina — by private agreement or in court — long before any other topics have been dealt with; or, property might be divided during the separation period long before there are any agreements with respect to custody or support. You will certainly want to consider during the negotiation process whether it makes sense to try to deal with all issues simultaneously, rather than one at a time as North Carolina law allows. In terms of peace of mind, closure and expense, it usually makes the most sense to settle everything at once and as expeditiously as feasible under your individual circumstances.

It is, of course, also often tactically advantageous to settle as many issues as possible all at once. A prime advantage of such a settlement technique is that either husband or wife has the opportunity to “trade” or compromise on items in one subject area (such as custody) for something that spouse wants more in another area (such as property). If, by comparison, all five topics are dealt with at separate times, as North Carolina law permits, “trading” across subject areas is going to be much more limited.

Negotiating successfully

Following just one piece of advice about negotiating may carry you to a satisfactory resolution. That advice is to focus most of your attention on the single issue that is most important to you (rather than allowing yourself to get sidetracked on issues that have only passing or minor emotional significance) and then to be prepared to make concessions on the matter that counts most to your spouse.

If you can see, ahead of time, that your most important issue is also your spouse’s most important issue, and the two of you are in opposite camps over that issue, negotiating may be a waste of time. If, on the other hand, you have figured out what your spouse most wants, and you can find a way to get to that point, that will provide you some leverage in the negotiations in getting what you most want.

Focusing on your single most important priority and your spouse’s highest priority are extremely important tactics that are all too often overlooked in negotiations for separation.

Let’s say you are the mother of two teenagers, both of whom hope and plan to go to college. You and your husband quickly drew up and signed a separation agreement and property settlement addressing only property and custody. Both children will reside with you. All the marital property, including the IRAs in your husband’s name, have been equally divided between you and your husband in the written agreement.

You entered into the written agreement, drafted without a lawyer, at a time that both of you foresaw you would have to ask a judge to decide the issue of child support because the two of you had sharp disagreements over that. You drafted the agreement yourselves, covering only custody and property, because you and your husband perceived both of those areas to be simple enough to do on your own. There was simply no contest over custody. You yourself felt especially secure about the property issues, too, because you have always managed the family finances. You were certain that you were not overlooking any marital assets when you tallied everything up. You also believed that all assets had been fairly valued and divided. You and your husband researched sample language for your written agreement in several legal texts; both of you understood your contract would be a binding agreement; and you are both hopeful that there are no major omissions or mistakes in the drafting you did. Thus, you are not really concerned about the future implementation of the custody and property agreement that the two of you have finalized.

You left child support out of your settlement discussions and the written agreement, however, based on your perception of your children’s financial needs and based on a concern that you might not have been able to draft an “air-tight” document concerning support. You believed the children would be entitled to receive monthly support above the Child Support Guidelines, which your husband would not agree to. You were both prepared, in the heat of angry conversations, to litigate the issue. You and your husband never discussed the children’s future college expenses, as the issue of child support was something the two of you did not discuss in any detail once it became clear that you were not going to be able to agree.

Now you have realized that getting your husband to agree to contribute to the children’s college education is much more important to you than having half of his IRAs; and contribution to college education is also now far more important to you than asking a judge to award monthly child support above the Guideline amount, which the judge might refuse to do anyway. You have also now been informed, correctly, that a North Carolina judge lacks the authority to order a parent to pay for college expenses unless the judge is merely enforcing a prior contract entered into between husband and wife. You did not know that earlier, just as you did not recognize earlier that college was a big deal for you.

At this point, you will be able, if at all, to get your husband to agree to contribute to college costs only by re-opening the negotiations that had previously resulted in a written agreement. Your husband may be interested enough in retaining all his IRAs or in getting some other item of property that he would consent to sign a new agreement that obligates him to contribute to college. On the other hand, he has now gotten used to the idea that he has divided the IRAs with you, according to what both of you deemed to be fair, and that he will just let a judge decide about monthly child support. In other words, your husband may no longer be interested in further negotiations with you.

The opportunity you once had for a more comprehensive settlement may be lost. Worse, you may be left with a bargain not as good as the one you might have struck with your husband initially. After enduring the stress (and possible expense, if lawyers were involved) of strenuous negotiations, parties may understandably be very reluctant to return to the bargaining table.

Therefore, you want to know — from the start — exactly where you want to go with the negotiations, sometimes even before the separation has begun. You also want to become more informed about some of the skills needed for successful negotiations. You can pick up tips about negotiating from a number of excellent books. An good place to start is with. The chapters in that book summarize some important points to keep in mind at all times: Don’t bargain over positions. Separate the people from the problem. Focus on interests, not positions. Invent options for mutual gain. Insist on using objective criteria. Know what to do if the other side is more powerful, or won’t play, or is using dirty tricks.

Negotiating in the face of the breakup of a marriage is a daunting task. The conflict with your spouse can get destructive; negotiations may get seriously out of control; one party may commit too early to something the party can’t or won’t do; and separation distress can be greatly augmented if settlement discussions aren’t mutual efforts to work out practical solutions that make sense for both partners and the children. Many couples cannot go it alone, but need to rely on lawyers or other professionals to smooth the way.

It is, of course, also extremely difficult for each spouse not to become embroiled in the issues that led to marital dissolution, whether or not the spouses enlist outside help for the negotiations. Your very best preparation for negotiations is to get your emotions under control and to inform yourself, as fully as possible, about:

  1. what you most need and want
  2. what your spouse most wants
  3. what the law says each of you is entitled to
  4. what your family income and expenses are now and what your income and expenses will be post-separation.

Don’t try to negotiate without getting a handle on this information, whether you are negotiating on your own behalf or you are using someone to negotiate for you. Don’t try to continue negotiations at a juncture at which one, or both, of you has lost objectivity.

Here are some tactics and attitudes to assume, if you do decide to try one-on-one negotiations with your spouse. Negotiate in a neutral place where you feel safe, at a pre-planned time. Break off negotiations immediately if things heat up unconstructively. A good starting point for settlement discussions is for you and your spouse to recognize, and enumerate, all the areas on which you agree.

Then find out more about all the things about which you can’t agree. Try to hear what your spouse has to say, without arguing the points. Try to get your spouse to hear what you have to say, without raising your voice. Be careful not to fence yourself in by indicating some dollar amount that you are offering, or that you are willing to accept. If you offer a dollar amount that you later realize was too high, your spouse’s expectations have been set at the higher amount. If you said you’d take an amount that you subsequently discover is too little to meet your expenses, you will have a devil of a time convincing your spouse to increase the amount.

Think about the items of property you are receiving when you and your spouse make guesses about their value; the lower the values on the items you will be receiving, and the higher the value of your spouse’s items, the more items you will get in a 50% division.

Address all the issues, not just some of the issues; look at the facts, not what you or your spouse imagine to be the facts; see if the two of you can create solutions rather than new areas for conflict. At impasses, talk together about what the likely outcome would be if you have to go to court. In order to make these predictions, you both need to know the basic materials presented in this book. You also need to look for points on which to leverage your requests. Such points include secrets that your spouse doesn’t want to make public, or your spouse’s sense of duty or your spouse’s pride in being known to do the right thing.

Remember, statistics predict you will settle the issues that may seem to be impossible to settle. But if you can’t settle under your own power, don’t wear yourself out trying. Just move on to the next step — get help from an attorney or another professional. If that person picks up the negotiations, the discussions may go on for some time. There may be telephone calls, letters, demands/counteroffers, proposed draft agreements, face-to-face meetings, delay. Still, you will most probably settle eventually and your separation will become a full, legal divorce.


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3 Comments

Zahra Doejune 2, 2017
Morbi gravida, sem non egestas ullamcorper, tellus ante laoreet nisl, id iaculis urna eros vel turpis curabitur.
Zahra Doejune 2, 2017
Morbi gravida, sem non egestas ullamcorper, tellus ante laoreet nisl, id iaculis urna eros vel turpis curabitur.
Zahra Doejune 2, 2017
Morbi gravida, sem non egestas ullamcorper, tellus ante laoreet nisl, id iaculis urna eros vel turpis curabitur.

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