Understanding Absolute Divorce

#1

My spouse and I have lived separately for nearly 3 years partly because I work out of town and wanted a divorce. Can I file for an absolute divorce? We do not have a formal separation agreement. We have a teenage daughter and martial assests that need to be divided. I want primary custody. What is the best route to take for the quickest resolution?

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#2

If you have been living apart for at least one year and separated with the intent to remain permanently separate and apart, then you can file for absolute divorce now.

However, along with your claim for absolute divorce, you need to include a claim for equitable distribution so the court can divide the marital property. Otherwise, if you were to have the absolute divorce granted without the marital property being divided, then you would be forever barred from asking the court to divide your property. This bar does not apply if you have an equitable distribution claim pending at the time the absolute divorce is granted.

You will also likely want to file for child custody and child support too since you have a child.


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.

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#3

I’m lost as to how to start the whole process. I want an absolute divorce as we have been apart well over a year. However, I have no clear idea at the actual value of the martial assets to be divided as he held most of these and I held mostly debt. I have tax records and information about retirement funds, 401K, company shares with values that are a couple years old but nothing that is up to date. How do I gather accurate up to date information? What information do I need? Should the value of these accounts only be up to date for the time of the marriage and stop as of the time I moved out with the intent to end the marriage? As to the child custody, I seek primary custody of a female teenager but it will require her to move several hours away from where we have lived her entire life and I know this will be a hard transition for all. I’m not sure he will agree and fear a custody battle as I have little resources compared to what he has financially. The past few years have already been difficult for my daughter and I fear a custody battle will be even more difficult. I don’t want her to have to choose between parents but it could come down to that I suppose. Living with me in another town would mean she is with a parent consistently daily. Living with her father would mean she is with sitters or relatives the majority of the time due to his work schedules. I feel being with me would be the better environment but how to go about presenting the case is intimidating to say the least.

How much is divorce going to cost me? How can I afford it? Is there such a thing as payment plans for divorce?

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#4

Both Husband and Wife must provide a full disclosure of financial assets before a settlement can be reached for equitable distribution (dividing the marital property and assets). This generally entails exchanging the last 6 months of account statements as well as several months worth or more of account statements from the time of the separation. You will also want that last 2-3 years of tax returns, last year’s W-2s/1099s/K-1s/etc., and the last 3-6 months worth of paycheck stubs.

The marital estate is “frozen” at the date of separation. So for equitable distribution purposes, each asset and debt is valued as of the date of separation.

If you file for equitable distribution in court, there will be mandatory exchanges of financial disclosures and many counties have rules and deadlines in place to ensure that a full financial disclosure is made by each spouse.

While you have a good argument for custody in that you would be with your daughter if she is with you while Dad would be gone a majority of the time due to work, it may not be in your daughter’s best interest to move several hours away to an area she is not familiar with and attend new schools, have new friends, new activities, etc. Custody decisions are determined by the best interest of the minor child. A judge may be hesitant to move your daughter several hours away if your daughter has continued to reside in the same area throughout the years of separation.

Check out our Attorney Fee Calculator to see how much this process might cost. Availability of payment plans will vary depending on each firm’s policy.


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.

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#5

In regards to a Absolute divorce, can my spouse and I have a separation agreement drafted to include both the child custody/co-parenting and marital asset distributions outlined but have the agreement date reflective of the actual date I left with the intention of divorce which was well over a year ago?

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#6

Yes, the separation agreement can include all issues: equitable distribution, alimony, child custody, and child support.

You will include your date of separation in the separation agreement which is the date that you moved out and one of you formed the intent to remain permanently separate and apart.

The date of the agreement must be the date in which you and your husband finalize the agreement and sign it in front of a notary.


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.

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