Hello, I am planning to move out of the marital house. Is it necessary to have separation agreement before moving out? What If my spouse doesn’t sign the agreement before or after separation? How can I seek post separation spousal support?
You do not need to have a separation agreement prior to separating, however, it can be helpful to have one in place before separating if possible.
If your spouse refuses to negotiate and cooperate with you and refuses to sign a separation agreement, then you can file a court action against your spouse for any of the claims you are eligible for (equitable distribution, postseparation support, alimony, child custody, child support).
If you are unable to negotiate spousal support out of court and reach a settlement, then you will have to file a court action against your spouse for postseparation support and alimony after you and your spouse have separated.
Anna Ayscue
Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest
Rosen Online | Unlimited confidential access to a North Carolina attorney for $199/mo - click here
The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.
Who will be responsible to pay for auto and health insurance upon separation? Supporting spouse’s salary is 3 times that of dependent spouse.
The spouse who has always carried the other on his/her health insurance needs to continue carrying that spouse on his/her health insurance until the absolute divorce judgment is entered, especially if the spouse who is being covered on the health insurance plan does not have employer-sponsored health insurance of his/her own. It is very common for the spouse who has carried the other on his/her health insurance plan continue to do so until the absolute divorce judgment is entered.
Auto insurance policies can be separated at any time, but the separation agreement should include that the auto insurance for the vehicle that is distributed to each spouse be the sole and separate responsibility of that spouse so that at the latest, the auto insurance policy can be divided once the separation agreement is fully executed or an equitable distribution court order is entered.
If the supporting spouse is refusing to pay the auto insurance for the dependent spouse, and the auto insurance policies can be separated, then the spousal support that the supporting spouse is paying to the dependent spouse needs to be sufficient enough to also include the dependent spouse’s expense of auto insurance as a reasonable expense.
Anna Ayscue
Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest
Rosen Online | Unlimited confidential access to a North Carolina attorney for $199/mo - click here
The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.
I’m planning to move out of the marital house in mid September but my spouse doesn’t know about it yet. Because of low mortgage interest rates right now my spouse is planning to refinance the house and is insisting/hoping that I cooperate (the house is in both our names). I’m not sure if it is ok to refinance now or wait until after separation. I am not comfortable letting my spouse know about my plans of separation a month and half in advance. As absolute divorce will take more than a year from now, is ok to agree to refinance jointly now?
You can refinance now, but if so, then it is possible that both of your names will be on the mortgage, which will mean that unless the house is sold in the separation/divorce, then the spouse keeping the house will have to refinance again in his/her separate and individual name.
Many people begin the separation process prior to actually separating. They negotiate and work to settle all of the issues (equitable distribution/property settlement, alimony, child custody, child support) and then one of the spouses moves out. Either way, you will need to ensure that equitable distribution is finalized or that at least an equitable distribution claim is pending in court prior to the absolute divorce being granted.
Anna Ayscue
Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest
Rosen Online | Unlimited confidential access to a North Carolina attorney for $199/mo - click here
The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.
How does court determine post separation spousal support & alimony if, when married, the supporting spouse’s personal life style was more lavish than the dependent spouse? Supporting spouse earns 3 times more than the dependent spouse and thinks she has right to spend more as she earns more. Will the court favor the supporting spouse because of his lavish ‘taste’ & order considerable lesser support to dependent spouse?
Also, is it possible to get a restraining order for a threat given by the spouse almost 3-4 weeks ago? I didn’t had enough strength to get one back then. Now I feel I should have.
The court will determine postseparation support and alimony based on many factors, including the supporting spouse’s ability to pay and the dependent spouse’s need. Judges will look at the supporting spouse’s expenditures and strike any that the judge does not believe are reasonable and necessary or any that are excessive. So the fact that the supporting spouse leads a lavish lifestyle will likely not negatively impact the dependent spouse’s postseparation support and/or alimony award.
Judges are required to base alimony awards on 16 Factors.
Yes, you can apply for a domestic violence protective order based on something that happened 3-4 weeks ago.
Anna Ayscue
Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest
Rosen Online | Unlimited confidential access to a North Carolina attorney for $199/mo - click here
The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.
My spouse has moved out and everything is pretty amicable. We aren’t ready to do a separation agreement because we want to pay down some debts first. Other than preventing future headaches, is there any reason why we need to document anything now?
Also - how do we “prove” his move out date? His address is still listed on bills, etc as mine but he has physically left the martial home with his possessions.
You do not need to have a separation agreement executed right away, but you should have one that fully distributes all of the marital property prior to the time the absolute divorce judgment is granted, or at least have an equitable distribution claim pending at the time the absolute divorce judgment is granted.
You prove your date of separation by your testimony under oath and your written allegations under oath in the absolute divorce complaint. You do not need to prove the date of separation for separation agreement purposes unless the date of separation is contested.
Anna Ayscue
Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest
Rosen Online | Unlimited confidential access to a North Carolina attorney for $199/mo - click here
The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.
Can these be ground for bed to board ; years of DV, constructive abandonment, my spouse giving more importance to his family than me, repeated threats to harm.
Yes, those can be grounds for a claim for divorce from bed and board.
For a more detailed explanation on each of the accepted fault grounds for a claim for divorce from bed and board, check out our article, What is a Divorce from Bed and Board?
Anna Ayscue
Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest
Rosen Online | Unlimited confidential access to a North Carolina attorney for $199/mo - click here
The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.
Is it ok to serve him with separation agreement and a lawsuit? He is a citizen of another country and I have doubts that he will return back to his country. If we sign separation agreement and he moves to his home country, what happens to alimony that he is supposed to give me for next 15 years. We are married for 30 years.
In this case what is better? Separation agreement or a court complaint?
You can do either a separation agreement or a court order (as a result of filing a lawsuit) in this situation. It may be better however, to initiate a lawsuit against him, especially if he is still within the state/USA now.
Anna Ayscue
Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest
Rosen Online | Unlimited confidential access to a North Carolina attorney for $199/mo - click here
The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.
Thank you. Is it possible to get international travel restriction for the spouse during separation?
No, this is not a possible remedy.
Anna Ayscue
Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest
Rosen Online | Unlimited confidential access to a North Carolina attorney for $199/mo - click here
The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.
I am about to file for an Absolute Divorce after being separated for over a year. We handled the separation agreement together and filed it through Wake County. There is alimony that I am getting and he wants to reduce it. What are the perameters on how alimony is reduced? Is there a formula through NC law? He is a contractor and makes significantly more than I do. If his income fluctuates yearly, how do we handle the difference? Is there a percentage I will get based on his yearly income or is it based on what my ex decides? Is there an addendum we need to add to our separation agreement to determine alimony based on his income yearly? I thought once an agreement had been made, it is set in stone. It’s been an amicable separation for the most part, keeping lawyers out of everything. I just want to protect myself and make sure we are doing things legitimately, even without counsel.
Before I file for the Absolute Divorce, does this alimony reduction issue need to be handled? Or can I still file for divorce and handle this separately?
If your alimony terms are in a separation agreement, then the amount cannot be changed without the agreement of both parties.
If your alimony terms are in a consent order order, then the amount can only be changed upon a showing of a substantial change in circumstances.
Either way, the alimony amount cannot be increased or decreased merely because one of the parties no longer likes the amount or wishes he or she had agreed to something different at the time the separation agreement or consent court order was entered. And either way, it is not changed or recalculated yearly.
There is no formula for alimony but is based on income, need, and ability to pay, among many other factors. Income is based on current wages and previous years of income when one spouse’s income is variable.
If alimony is settled (i.e. it’s in a separation agreement that has been signed and notarized by both spouses or it’s in a consent court order that has been signed and filed by the judge), then you do not need to deal with alimony further before filing the absolute divorce. Alimony would be considered permanent and resolved.
Anna Ayscue
Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest
Rosen Online | Unlimited confidential access to a North Carolina attorney for $199/mo - click here
The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.
Is it possible to ask for lump sum alimony in separation agreement, maybe in form of the marital home?
What happens if the supporting spouse refuses to pay the alimony based off of separation agreement (because it is not court document) after the divorce gets final? If that’s the concern, what is preferred: separation agreement or court order?
Yes, you can ask for alimony to be made in a lump sum up front rather than monthly payments for a specified period of time.
If the supporting spouse is obligated to pay alimony in a separation agreement and he/she does not do so according to the terms, then the recipient spouse would be able to file a breach of contract lawsuit against the supporting spouse for violating the separation agreement.
A separation agreement remains in effect even after the absolute divorce is finalized. The absolute divorce has no bearing on the validity or enforceability of a separation agreement.
For enforcement purposes, a court order differs from a separation agreement in that the remedy to enforce a court order is a contempt motion using the contempt powers of the court. The judge could have the ability to hold the violating spouse in contempt and put him or her in jail.
Alimony in a court order will also enable alimony payments to be modified in the future upon a showing of a substantial change in circumstances, whereas it cannot be amended in a separation agreement unless both parties agree to the change.
Anna Ayscue
Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest
Rosen Online | Unlimited confidential access to a North Carolina attorney for $199/mo - click here
The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.