Frequently Asked Questions
In North Carolina, the parties must be separated for more than a year before filing for divorce. North Carolina is a “no-fault” divorce state. The parties do not need a reason to seek divorce nor do they need to agree about getting divorced. However, because legal rights are involved - including rights of property and alimony - the party seeking the divorce must properly serve the other party. The requirements for proper service are intertwined in the Constitution of the United States, the Constitution of North Carolina, state statute, and case law. It can be a maze, one that an attorney can help you navigate. Call us and schedule an appointment to discuss the process for obtaining a divorce in Mecklenburg and Union Counties.
What Is Separation? What counts as separation in North Carolina?
In order to be separated, the parties must (1) live apart (2) for more than a year (3) with no intention to resume the marriage.
All of those elements are required. Living in the same home but in a different room or on a different floor is unlikely to be considered separation in the eyes of the court.
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Separation is an important part of divorce and equitable distribution. In North Carolina, in order to obtain a divorce, the parties must be separated for more than a year (N.C.G.S. § 50-6). To commence an action for the equitable division of property, the parties must be separated (N.C.G.S. § 50-21).
If I try to separate, can I be accused of abandonment?
One spouse abandons the other when he or she leaves without justification (Panhorst v. Panhorst). Abandonment can occur without physically leaving the home. Unfortunately, courts have no precise definition as to what justification means in these cases.
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This is why it’s important to have an attorney if you are thinking about separating. We can help you through the process and defend you against claims of abandonment.
Do I Need an Attorney? Can't I Just Represent Myself?
Oftentimes, parties in the initial stages of separation express a desire to get things done amicably. Just as often, the acrimony seeps in and the process turns ugly. If it becomes necessary for a court to decide the outcome of matters such as custody, child support, alimony, or property, having a qualified attorney assist you is indispensable. If you represent yourself, a court will treat you as if you are a lawyer. You will be responsible for knowing the rules of civil procedure, the local court rules, and the rules of evidence.
Do I Really Need an Estate Plan?
One of the most repeated comments we tend to hear is “I don’t need a will because I don’t really have that much.” Families with even modest estates can benefit greatly from having an estate plan. Properly drafted, a last will and testament is going to make things a lot easier on your family, especially during an otherwise difficult time. But an estate plan is much more than just a will. It includes documents such as general and health care powers of attorney, which allow your loved ones to manage financial and medical decisions in the event you become incapacitated. And a living will can spare your family and estate from expensive and agonizing decisions.
Can a Trust Help Me Reduce Tax Exposure?
In some cases. A revocable trust allows a person to transfer property into the trust, but also to remove property from the trust if so desired. Because the property can be removed, there is usually no tax benefit to a revocable trust. In an irrevocable trust, once the property is transferred to the trust, it belongs to the trust and usually does not come out. For this reason, the irrevocable trust has more value as a tax shelter.
Can't I Just Get a Will Made Online for Cheaper?
​Surely . . . . and you get what you pay for. Every family has unique characteristics and even seemingly innocuous details can make a big difference in how an estate plan should be crafted. Having a defective Will or Trust can be even worse than having no Will or Trust at all.
CONTACT
1200 East Morehead Street
Suite 104
Charlotte, North Carolina 28204
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Tel. 980-880-6900
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