Settlement is preferable in almost every case for any number of reasons. In almost all cases, resolution through settlement is less costly, less prolonged and less emotionally draining than litigation. The emotional strain of court proceedings is felt, moreover, by each spouse regardless of who initiated the litigation and also by the children, by other family members, and by friends and work associates who interact with the litigating spouses.
Divorce — even without litigation — is already a major emotional stress on any family. The changes in family living arrangements during the separation process alone causes temporary adjustment problems for the most sturdy of individuals. Added to such changes is all the uncertainty involved in allocating family financial resources that once went to one intact family unit and must now stretch to meet the needs of two households.
It is, then, little wonder that many families feel crushed by the extra emotional wear and tear of having to deal with court papers, including the burdensome discovery process of sharing written documents and answering written or oral questions, the selection and interviews of potential witnesses, and all the anxiety of formal court proceedings.
Another disadvantage to litigation is that the judge, and not either of the contestants, dictates the result. Once your case is litigated, you lose control over the process even when you think you and your attorney may be influencing the judge.
The outcome of litigation is, moreover, never a real victory for either side. Each side loses from having had to go through adversary proceedings. The children will be traumatized as well, whether or not they ever step foot in the courthouse. Regardless of your reasons for the separation, it is almost always advised that you try to settle out of court. The judicial system is, on the whole, conservative in fashioning remedies. The system will not provide the kind of creative solutions that you and your spouse might create on your own, provided you both have the stamina necessary for negotiation and the capacity to be flexible.
For all these reasons, you want to go to court only as a last resort, when nothing else looks like it will work. Regardless of whether spouses can settle or they are forced to litigate, the independent nature of custody, support and property issues in North Carolina can drag out the ultimate resolution of all issues arising from separation.
For example, custody can and might be resolved in North Carolina — by private agreement or in court — long before any other topics have been dealt with; or, property might be divided during the separation period long before there are any agreements with respect to custody or support. You will certainly want to consider during the negotiation process whether it makes sense to try to deal with all issues simultaneously, rather than one at a time as North Carolina law allows. In terms of peace of mind, closure and expense, it usually makes the most sense to settle everything at once and as expeditiously as feasible under your individual circumstances.
It is, of course, also often tactically advantageous to settle as many issues as possible all at once. Following just one piece of advice about negotiating may carry you to a satisfactory resolution. That advice is to focus most of your attention on the single issue that is most important to you rather than allowing yourself to get sidetracked on issues that have only passing or minor emotional significance and then to be prepared to make concessions on the matter that counts most to your spouse.
If, on the other hand, you have figured out what your spouse most wants, and you can find a way to get to that point, that will provide you some leverage in the negotiations in getting what you most want. You and your husband quickly drew up and signed a separation agreement and property settlement addressing only property and custody. Both children will reside with you. You entered into the written agreement, drafted without a lawyer, at a time that both of you foresaw you would have to ask a judge to decide the issue of child support because the two of you had sharp disagreements over that.
You drafted the agreement yourselves, covering only custody and property, because you and your husband perceived both of those areas to be simple enough to do on your own. There was simply no contest over custody. You yourself felt especially secure about the property issues, too, because you have always managed the family finances.
You were certain that you were not overlooking any marital assets when you tallied everything up. You also believed that all assets had been fairly valued and divided. You and your husband researched sample language for your written agreement in several legal texts; both of you understood your contract would be a binding agreement; and you are both hopeful that there are no major omissions or mistakes in the drafting you did.
Thus, you are not really concerned about the future implementation of the custody and property agreement that the two of you have finalized. You believed the children would be entitled to receive monthly support above the Child Support Guidelines, which your husband would not agree to. In addition, there is a fee that needs to be paid to the Clerk of Court. Please keep in mind there are additional forms that are required after the divorce has been filed i.
The complaint is filed with the Clerk of Court once the form is completed and the required fee is paid. The complaint merely states what you are asking and why i. In the complaint you must also state whether or not there are children born to the marriage.
If there are, you need to list their names in the complaint. The summons merely states to the other party that an action has been filed against them and they are required to answer. You need to make sure that you have additional copies of the summons and the complaint.
While the court keeps the original, you need extra copies to be able to serve the opposing side with the documents, as well as a copy for your records. Also, if you believe service is going to be an issue, I would make sure you have plenty of summons at least four extra signed by the Clerk of Court. That way, you have multiple originals to attempt service.
While you only need a copy of the complaint, you need an original summons to be given to the opposing party upon service. In North Carolina, you first try to serve the complaint along with the summons by sheriff.
I would contact the local sheriff agency to determine their fee for service. If the sheriff is unable to serve your spouse, your next avenue is to try to serve by certified or registered mail. You can also try to serve by personal delivery by a proper individual or by a designated delivery service i. If all those avenues fail, you must then try to serve by publication.
Until the opposing party has been served with the divorce complaint you cannot do anything. You must wait until the opposing party has been served or that service by publication has been done and there has been no response. Each case is different and therefore it is nearly impossible to determine how long it takes to receive a divorce.
Again, in North Carolina this varies county by county. Some counties require live testimony, while others do not. The divorce is granted once it is scheduled for hearing after the opposing party has had the opportunity to answer the complaint or the opposing party has failed to come forward after service by publication.
Once the hearing has been scheduled, the judge ensures all the requirements have been met i. Once again, you will need to speak to an attorney to determine whether or not a court appearance is necessary. In Mecklenburg County, there is a self-serve center that has the necessary forms to file for divorce. They can help you fill out the forms and obtain a divorce.
In other counties, there may be other free services that help people obtain a divorce without an attorney. However, I would speak to an attorney prior to filing for divorce on your own, so that they can discuss with you the other possible claims that may be available to you. According to North Carolina divorce laws, you do not need to prove fault for divorce. As long as you prove there has been a period of one year of separation and that one party has resided in North Carolina for six months prior to the filing of the action, then you can apply for a divorce.
Fault as no place in a strict Absolute Divorce action. Also, if the minor child is 16, then the consent of the other parent is not necessary.
North Carolina does not allow common law marriages. In North Carolina, you must either be solemnized as husband and wife in front of an ordained minister of any religious denomination, minister authorized by a church, magistrate, or in accordance with any solemnization recognized by any religious denomination, or federally or state recognized Indian Nation or Tribe. Related Article: What qualifies as a legal wedding or common law marriage? The court requires the filing spouse to pay fees before the court accepts the filing.
It's common to worry about how much a divorce will cost, but if you can't afford it, you can ask the court for help. The filing spouse can ask the court to let you file for free by submitting the form "Petition to proceed as an indigent" Form AOC-G to the court.
If the judge approves your request, you will not have to pay filing fees in your case. Once you submit your documents to the court, you'll need to provide a copy to your spouse. In North Carolina, you can't deliver the documents to your spouse yourself. Instead, you can ask the local sheriff's office to hand-deliver the documents for you, or you can request someone over the age of 18, not involved in your case, to serve the paperwork for you. If personal service isn't an option, you can mail the documents by registered or certified mail.
Once you serve your spouse, you'll need to complete and submit a "proof of service" form to the court. If you request the sheriff department to deliver the documents, the officer should complete the form and submit it for you. The court requires "service" of legal paperwork to ensure that both spouses are aware of the pending divorce.
To speed up the waiting period, divorcing couples can waive the service requirement along with the right to file an answer to the complaint. In North Carolina, spouses must wait at least 30 days for a hearing following "service" of the divorce complaint on the non-filing party. If you need money immediately, you may check with local social services offices or charitable organizations to see if there is any temporary assistance available.
If you have children in your care, you can seek child support through your local child support enforcement agency. After one full year of separation. In NC you must be separated for at least one full year before you can file for divorce. Probably yes, to some extent. However, property acquired and debts incurred during the separation are treated differently than the property and debt accumulated while together during a marriage.
If you know your spouse is likely to run up significant debt and try to leave you with it, you should speak with an attorney for additional advice on how to limit your liability. This is a difficult question to answer. You cannot marry until the final divorce. Do I have to wait a year to file for custody? You should consult with an attorney or see if there are any free custody clinics in your area. Is what my spouse is telling me true? The same is true with debt. The law presumes that marital property and debt is to be divided equally.
Whether the police would help get the property back for one spouse, however, is another story. Police tend to shy away from property disputes, leaving that for the Courts. If you have specific issues with property and need advice, you should speak with an attorney. If you cannot find where your spouse is located you may need a lawyer because this will complicate your case.
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