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Family Law For Real People

I or my spouse or both of us have decided to separate. What should I do?

You should consult a lawyer. This might occur before or after separation. Separation is a legally significant event because: a divorce complaint can be filed one year from date of separation; the value of marital assets and debts is determined at date of separation; a spouse who leaves the marital home may be found to have abandoned the marriage.

We are separated. What should I do now? 

There are four common issues in most marital dissolution cases: 1. splitting up the property and debt from the marriage (in legal parlance: equitable distribution); 2. spousal support; 3. child custody; and 4. child support. If you and your spouse have no children, there are only two issues. If you and your spouse have no children and earn similar incomes, you likely have only one issue to resolve. You have two basic options: start settlement discussions from the start or file suit. Even if one party files suit, the overwhelming number of cases settle before trial.

Settle – Most cases of all kinds settle before the parties ever get to court. You and your spouse can agree to settle all of the issues resulting from a separation and make a private agreement instead of battling it out in court. There are many paths to settlement.

Starbucks Method – You and your spouse can agree to settle all of the issues over a cup coffee. If you do, it would be wise to have a family law attorney reduce your agreement to writing.

Up-Front Mediator Method – If you and your spouse are unable to reach agreement without the help of a third party, there are at least two excellent up-front mediators our firm has worked with. I will be happy to recommend them to you. There are other mediation approaches discussed below. Up-front mediation is different in that no suit is ever filed. The parties sit down with the mediator and compile a list of agreed upon deal points which are reduced to a few pages (sometimes even 1-page). The parties then each hire his and her own lawyer to convert the deal into a formal contract.

Child custody mediation – Under North Carolina law, with few exceptions, all child custody cases will go to mediation. As soon as a child custody case is filed in court, the parties are ordered to attend a form of mediation provided by the State at a very low cost. Custody mediation involves three steps – attend an educational class called “Parenting Under Two Roofs,” attend mediation orientation, then attend the mediation itself. Your lawyer will not attend the mediation session with you, but you should review the agreement with your attorney after the session. Successful child custody outcomes depend on the parents’ ability to see the world through their children’s eyes. An excellent video below is providing insight to the way children see things. Call our office for a free link to view the entire 25-minute video.

Family Financial Mediation – Also, under North Carolina law, you will be required to mediate the spousal support (if any), child support and property distribution claims. This mediation is private, lawyers participate and the mediator, a lawyer, charges typical lawyer fees.

Arm’s Length Negotiation – Many family law case settle once the parties hire counsel. The lawyers work at the instruction of their clients to negotiate, usually via phone and email, to help the parties reach a settlement that each finds acceptable.

Collaborative Spouses work together with their lawyers and, on occasion, other family professionals in order to avoid the uncertain outcome of court and to achieve a settlement that best meets the specific needs of both parties and their children without the underlying threat of  litigation. The collaborative  process is initiated when the couple signs a contract (a "participation agreement") binding each other to the process and disqualifying their respective lawyer's right to represent either one in any future family-related litigation. In other words, the parties and their lawyers agree right up front to take the nuclear option of litigation off the table.

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