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Common Divorce myths:

Myth 1 – I paid for everything, so I get to keep...

Wrong. The process for splitting up property in NC is called "equitable distribution." There are generally three steps to the process. The first step is "identification" which determines what property is “marital” and what property is “separate.” Separate property is property owned before marriage, inherited property, or property that was a gift to the claiming spouse. Property that is acquired during the marriage by one or both spouses, and owned on the date of separation, is usually defined as marital property subject to equitable distribution. The most common misconception regarding this process is whether one or both spouses paid for a certain asset or whether one or both spouses are named or registered owners. This does not determine whether an asset or liability is “marital” or “separate.” Additionally, gifts from one spouse to the other spouse during the marriage are presumed to be gifts to the marriage.  The second step is “valuation.” Generally, the fair market value is assigned to each item of marital property. If a value cannot be easily determined or agreed upon, then appraisers or other experts may be required to determine the value of the item in question. The fair market value is often different than purchase value or replacement value. Sentimental value is generally not considered by the court in the process.  The third step is “distribution.” This is where the court must distribute the marital property in an “equitable” manner. An equal division of the marital estate is the presumption under the Equitable Distribution Act; however, there are “factors” under the Act that a court may consider to determine that an un-equal distribution would be equitable.
 

Myth 2 – My children are 13 and 15, so they get to decide where to live...

 

Wrong.  In contested child custody cases, the courts decide custody and visitation based on the "best interest of the child."  Only the court gets to make that decision. In general, judges are rarely aware of the wishes of the children, particularly when the children are young. Judges may consider the wishes of older children in deciding custody and visitation, but this is purely a matter of judicial discretion.  This often requires older children to become an adverse witness to the other parent, which is rarely, if ever, a position children should be put in. This can also turn custody cases into a determination of who is the more lenient or "fun" parent, which is often not in the "best interest of the child." Contested child custody cases are some of the most difficult and draining court cases on judges, attorneys, and of course the parents and children involved.

Myth 3 – They missed their child support payment, so I don't have to let them visit...


Wrong. This situation can arise if the non-custodial parent falls behind in their child support, and the custodial parent decides that the delinquency justifies preventing the other parent from having visitation. This you cannot do. Under the law, child support and child visitation are separate legal issues. In fact, judges generally frown on parents attempting to use one to leverage the other. While child support is needed for the support and maintenance of children's needs, it is not payment for the privilege of visitation for the non-custodial parent. Likewise, the non-custodial parent that is denied visitation cannot withhold paying child support. Again, child support and child visitation are separate legal issues, and any non-compliance must be dealt with in proper court proceedings, not in a tug of war using children.  

Myth 4 – We don't have a Separation Agreement, so we aren't legally separated...

Wrong.  A couple is not required to have a formal separation agreement to be considered "separated."  A separation agreement is simply a contract. Being "separated" means that the couple are living separate and apart, under separate roofs, and at least one of them have the intent to terminate the marriage.  If the couple begins to live together again, under the same roof, they are considered to have resumed the marital relationship and "reconciled." They are no longer considered to be legally separated. However, maintaining a civil relationship, attending children's functions or family functions at the same time, or even visiting in the formal marital residence would not be considered a "reconciliation" or a resumption of the marital relationship.  Regarding "divorce," there are two requirements that must be met in NC to dissolve a marriage (called "Absolute Divorce"). First, at least one of the parties must have lived in North Carolina for 6 months prior to filing for divorce; and second, the couple must have lived apart, under separate roofs, for at least one year and at least one of the parties intended to terminate the marriage. This is considered a “no-fault” divorce as the parties do not have to state a reason for ending the marriage, they just have to meet these two requirements.  So long as these requirements are met, one spouse cannot stop the other from obtaining a divorce. But be aware, obtaining an Absolute Divorce can bar pursuing other legal remedies that may be available such as alimony or equitable distribution if these claims have not already been pursued or otherwise resolved.

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