Divorce


#1

I’ve been with my husband since 1997 (married since 1998). He has always drank and stayed out all hours of the night. He works hard, but plays just as hard, has never wanted me to work. I have raised our children without much more than the financial contribution from him. I do not drink or use drugs. I’ve never been in any trouble. He has had several DUIs & a few minor run-ins with police (mostly for being drunk in public & 4 driving without a license just this year). He has also been unfaithful to me many times throughout our marriage (the last time I caught him was last year). He tells me that if I try to divorce him, he can take our children (age 13 & 11), because he works & I don’t. I want to know what is the best way to proceed with a separation/divorce ? And can he be ordered to pay spousal support as well as child support ?


#2

NOT AN ATTORNEY…SO THESE ARE JUST MY $2 OPINIONS

Do not worry. Unless you are dangerous to the children, he cannot take them from you.

1.) Separation in NC begins when one of two parties moves into a separate residence with the intention of remaining separated. One must be separated and apart for a year before a divorce can be obtained. Isolated instances of sexual contact do not reset the year clock.

2.) Child support. Yes, since he has been the supporting spouse throughout the marriage, he will be required to pay child support. Upon separation, you may immediately be able to file for child custody and child support (which are two different things according to NC law). I would do so immediately. Child support is based upon gross income and the number of nights of visitation to each party.

3.) Alimony. If he has been the supporting spouse and you the supported spouse throughout the marriage (i.e. your income is significantly less than his), he will be liable for alimony. If you have committed infidelity during the marriage, you will be barred from receiving alimony. A general guideline for the duration of alimony is 1/2 the length of the marriage, so if you had a 10 year marriage, then alimony will probably last for 5 years. This isn’t a rule, though. Much is up to the discretion of the courts.

As for amount…that too will vary. Do not expect to be entirely supported by alimony. Generally speaking, after divorce both partners standard of living goes down as the resources combined to support one household are now divided to support two. Alimony is tax deductable to the payor and taxable as income to the recipient. Alimony is different from post-separation support. You may file for post-separation support as soon as you separate. You must file for alimony before the divorce is final or you forever lose the ability to get it.

If you don’t have separate bank accounts, I’d go and get one of your own right now. I’d also go and consult with an attorney. You may be able to receive reimbursement by your ex for your attorney’s fees because you are the supported spouse.

Start documenting everything now. Make your own copies of all financial and property documents, accounts, debts, etc. Store them in a safe place where your husband can’t get to them. If you have any evidence of his affairs, I’d also store copies of all that offsite where he can’t get to them. Any communication that you can record, keep. Phone logs of discussions with him, emails, whatever. Keep it all just in case you need it for the future.

If you end up moving out, make sure you take everything you plan on keeping with you immediately. It’s easier to get it out now rather than hope for goodwill to get it later. Once you have left the residence with the intention of staying apart, you lose all rights to reenter without permission.

I’d also suggest negotiating a separation agreement (SA) as soon as possible. DO NOT AGREE TO ANYTHING THAT YOU WILL WANT TO CHANGE AT THE TIME OF DIVORCE. The SA is a private contract that will be next to impossible to change once it is signed. Likewise, do not agree to anything in a SA that you cannot perform no matter the circumstances, and make sure everything is spelled out in the SA. (For instance, if you were the supporting person, do not agree to a blanket statement to pay for all college expenses. Such a vague statement leaves much open to interpretation and therefore up to argument which could keep you in/out of court for a long time. “College expenses” could mean a state university or it could mean Harvard. Big difference in how much money you’d be responsible for. It could also mean that you’d be responsible for not only tuition and books, but also apartments, study abroad, etc. It could also mean that despite failing grades, you’d be responsible for paying for years of study thrown down the drain…or if you became disabled or unemployed, you’d still be responsible for paying for college. Be specific.)

Until the divorce is final, you may date, but do not sleep with or stay overnight in the same place as someone of the opposite sex. Be aware that your actions will most likely be under scrutiny during this time. Don’t torpedo yourself or any potential future relationship.

Divorce is a business. Treat it with all the seriousness you would negotiating the contractual obligations of the break up of two major corporations.

Lastly, except where discussions may need to occur to negotiate schedules, keep the kids out of it. Do not talk negative about the other parent if the children are in your presence, EVER…even if you think they can’t hear. Do not ask the children about the other parent, do not ask them to relay messages to the other parent. If the children choose to discuss the other parent, do not cut them off, listen as much as possible without showing emotion. The kids will try to test the waters to see where things shake out. Even though you may dislike your ex or not agree with him/her, do your best to maintain a united parental front with the kids. It gives them a sense of security, believe it or not. If the ex decides to play dirty or use the kids as a weapon, be the role model in the situation and take the high road.

Damage done to children during divorce is generally not because of being from a divided home as much as it is from dealing with parental animosity towards the other parent, undermining punishments set by the other parent or undermining the other parents rules, overindulging children so that one can become the “favored” parent, or treating the kids like or they are damaged goods or telling the kids that they are damaged because their parents are no longer together. If one is told that they are damaged or the victim enough, they will become that.

(I’ve been a child of divorce, a step child, got divorced myself, and have been the GF of someone divorcing, and the wife of a divorcee. My father’s parents divorced when he was young, and my greatgrandmother divorced her 2nd husband, so I’ve seen divorce from many different angles.)


#3

You have many options at this point. I would recommend you meet with a family law attorney to create a plan of action in your case. To give you some general information, if you want to separate immediately, you can just leave the house with the children. Be sure to take as much personal effects and furniture as you can, because once you move out, your ex can change the locks and not allow your access to the home without his permission in the future. Ideally, you would complete a separation agreement prior to separation, but this is not always feasible. If you really do not wish to leave, but want to force him out, then the only way to do that is to file an action for a divorce from bed and board. You will need to show fault on his part to get this done. This is a judicially enforced separation, not an absolute divorce, that will cut off certain estate rights and also force him out of the home, if your action is successful. Once you are separated, you can file for equitable distribution, post-separation support (if applicable), alimony (if applicable), child support and child custody. I would certainly recommend filing child support and child custody (and PSS–if applicable to you) as soon as possible once you separate if you cannot reach a formalized separation agreement. You have to wait until you are separated for one year and a day before you can file for an absolute divorce. Good luck to you!