Frequently Asked Questions About Family Law from the Experienced Domestic Attorneys at Kurtz & Blum
1. Do both my spouse and I have to agree to separate or get a divorce?
No. You don’t both have to want to divorce. Your spouse does not have to agree. As long as one of you has the intention of separating and you are living separate and apart, that is sufficient to begin the year of separation. After you’ve been separated for one year, either you or your spouse can file for a divorce. There are precautions that you should take, however, before you separate from your spouse in order to avoid claims of abandonment. An experienced attorney can help you avoid future problems.
2. If my spouse has had an affair, do I automatically qualify for a divorce?
You may be able to claim for a special legal separation called Divorce from Bed and Board and/or alimony based on wrongdoing by your spouse. A Divorce from Bed and Board is not a divorce. In order to be divorced, you and your spouse must have lived separate with the intention of being separated for at least one year.
3. What happens if my spouse and I try to reconcile during our one-year separation? Can we still go forward with the divorce if it doesn’t work?
North Carolina defines the resumption of a marriage as a renewal of the husband and wife relationship, based on all of the circumstances. Small, isolated incidents of sexual intimacy between you and your spouse will not restart the date of separation. It isn’t uncommon for spouses to try to work out their problems or to engage in sexual relations together during their year of separation, and North Carolina wants to encourage spouses to try to save their marriages. Spending a night together is not the same as moving back in. If you and your spouse move back in together for a period of time and resume your marriage, the date of separation will restart if you separate again.
4. Do my spouse and I have to wait the whole year before filing for alimony or separating our property?
No. As soon as you are separated, you can file an action for Equitable Distribution, alimony and/or post-separation support. You can also resolve your property and support issues without court in a separation agreement. By the time the year of separation has passed, you and your spouse can have many of the issues related to divorce already resolved so that the divorce itself is a simple procedure.
5. Do I have to hire an attorney to get a divorce?
You can purchase a Do-it-yourself Absolute Divorce kit from the North Carolina Clerk of Court for your divorce. The Clerks cannot help you fill it in or guide you. Although the process is not complicated, if you haven’t done it before, it can be confusing. If you miss a step, file something incorrectly, or forget to include important information, your divorce can be denied. Another concern is that by filing for divorce, you will be giving up certain rights. If you don’t have all of your issues straightened out, you could be barred forever from asking the Court to help you with those issues. A divorce attorney will ensure that all the steps are done correctly the first time, that all of your rights have been protected, and that your property division, spousal support and/or alimony, or child custody and child support issues are properly handled.
6. My child’s other parent and I don’t want to go to court. Can we handle child custody and visitation without a hearing in court?
Yes. If you and the other parent can agree about visitation and child custody, a hearing may not be required. An experienced family law attorney can help you draft a Custody Consent Order that contains all the required provisions and has sufficient details to avoid future misunderstandings between you and the other parent about custody exchanges. This is the easiest and best way to handle custody. An agreement between parents is not as strong as a court order and if you try to write it yourselves, you may miss some important details that could cause serious problems in the future.
7. My child’s other parent and I can’t agree on a visitation schedule. What can I do?
If you and the other parent of your child cannot agree on custody, then an experienced family law attorney can help you file a child custody action in court. The North Carolina court requires that most custody parties attend an orientation class and mediation session prior to a court hearing, unless there is an emergency situation. Although your attorney is not permitted to attend the court-ordered mediation with you, it is very valuable to meet with your attorney beforehand so that you are well-prepared to address as many of the potential issues as possible. If you and the other parent do not reach an agreement during mediation, then your attorney will present your case to the judge, and the judge will make a custody decision. That decision will become an order that both you and the other parent must follow.
8. The other parent won’t let me see my child, or I don’t want the other parent to see my child. What can I do?
Without a custody order or notarized agreement, both parents have equal right to custody of their child. The courts don’t want the child pulled back and forth like the flag in a tug-of-war and that can sometimes happen if both parents are not acting in a reasonable way with regards to visitation and child custody. If the other parent is being unreasonable, you should consult with an experienced custody attorney to determine if an emergency hearing is needed, or at least to help you file an action for temporary and permanent custody to end the tug-of-war.
9. Does my child’s opinion matter in deciding custody?
Most often, it’s best not to involve the minor children in a custody action between you and the other parent. The children need to feel secure and loved by both parents in most cases, and should never be put in a position where they are asked to choose one parent over the other. Coming to court and dealing with custody is stressful for children and should be avoided whenever possible. There are some circumstances, however, when a child needs to have his or her opinion heard, or when he or she is mature enough to make a decision about where he or she wants to live and why. In these limited situations, the court will give considerable weight to the child’s opinion. Ultimately, the judge will decide what is in the best interests of the child, and it may or may not be what the child wants.
10. What will my divorce cost?
Divorce involves many separate issues: child custody, child support, spousal support and/or alimony, and property distribution – also known as equitable distribution. It’s possible that emergency hearings and temporary restraining orders might be needed as well. Every divorce is different. Your divorce might not involve as much as another person's. If that is the case, then it shouldn’t cost the same as a more complicated and difficult lawsuit. For the issues arising out of a separation and divorce, the experienced attorneys at Kurtz & Blum will only bill you for the work they do based on what you need. It’s an hourly rate and you get monthly bills showing exactly what was done on your case and how much time it took.
Once all of your divorce-related issues are handled, either by court orders, mediated agreements or separation agreements and property settlements, the absolute divorce can sometimes be handled at a reduced, flat rate for an amount less than what it would cost hourly, depending on the procedures required by the county where the divorce is filed. Kurtz & Blum offers a reduced, flat rate for several counties, including but not limited to Durham, Cumberland, Franklin and Wake Counties. Other counties may be hourly or flat. Call Kurtz & Blum with your information, and our experienced attorneys and staff will help you with your questions and schedule a personal consultation.
Our family law attorneys help people throughout Wake County, North Carolina. We frequently handle offenses arising out of the following cities: Raleigh, Wake Forest, New Hope, Garner, Holly Springs, Rolesville, Cary, Apex, Fuquay-Varina, Knightdale, Wendell, Zebulon and Morrisville.