Charlotte Separation Lawyer & Divorce Attorneys | Hatcher Law Group


Separation & Divorce


The attorneys at Hatcher Law Group represent clients in all stages of the divorce process, whether you are planning for divorce, just separated, have represented yourself throughout much of your proceedings, or are seeking a second legal opinion. We are well-known litigators with extensive experience in handling highly contested and complex financial and child custody issues. We also regularly assist our clients with cases that do not involve litigation, such as an uncontested divorce or amicable situations where both parties wish to achieve a settlement through negotiation, mediation, arbitration, or the Collaborative Law process.


What is Legal Separation?

The term “legal separation” is somewhat misleading. In North Carolina, there are no special forms or documents to file in order to be separated. In other words, once you and your spouse begin living separate and apart, you are separated. However, a separation agreement can set forth terms related to physical separation and each party’s rights and obligations regarding their family and marital relationship.


What is an Absolute Divorce?

North Carolina is a no-fault divorce state, which means neither spouse has to prove any wrong-doing to be granted an absolute divorce. To file for an absolute divorce, or what is commonly referred to as “divorce,” the state of North Carolina requires the following:

  • The couple must be legally married.
  • At least one party has been a resident of North Carolina for six consecutive months immediately prior to filing a claim for absolute divorce.
  • The married couple must live separate and apart without cohabitation for at least one year immediately prior to filing a claim for absolute divorce. (Parties are not considered separated if they’re living in separate areas of the same household; or if one of the parties has communicated to the other that he or she no longer wants to be married.)

A divorce is simply the process that allows couples to legally end a valid marriage. In most cases, the process does not resolve separate, yet related, issues such as property distribution, alimony, child custody and/or child support. Notably, a party is permitted to restore his or her former or maiden name automatically as part of a request in an absolute divorce.

Failing to address alimony and property distribution matters prior to finalizing a divorce may seriously impact a party’s financial situation. If parties have not preserved their rights to alimony and property distribution before a divorce judgment is entered, all claims for spousal support are barred and property goes to the party with legal title.

A parent’s rights to child custody and child support are not affected by the entry of a divorce judgment. Even if a divorce has been granted, and regardless of marital status, a party can file a claim for child custody and/or child support.

 

What is Annulment?

An annulment is a declaration that a marriage is void, meaning that it never existed. Therefore, if your marriage is annulled you will have no claim for alimony or equitable distribution of property.

The following marriages are subject to annulment:
  • Between any two persons nearer of kin than first cousins
  • Between any two persons who are double first cousins
  • Between a male person under 16 years of age and any female
  • Between a female person under 16 years of age and any male
  • Between persons either of whom has a husband or wife living at the time of such marriage
  • Between persons either of whom is at the time physically impotent
  • Between persons either of whom is at the time incapable of contracting from want of will or understanding
  • A marriage entered into under the representation and belief that the female partner to the marriage is pregnant, followed by the separation of the parties within 45 days of the marriage and which continues uninterrupted for one year, shall be voidable if no child is born to the parties within ten lunar months of the date of separation

 

What is Divorce from Bed & Board?

Divorce from bed and board is distinctly different from absolute divorce. It is a fault-based legal claim, and it does not legally dissolve a marriage. Divorce from bed and board is a judicially authorized separation. It can force one party to move out of the former marital residence if he or she is unwilling to do so by consent. Divorce from bed and board also provides a party an avenue to allege marital misconduct which is otherwise irrelevant to the proceedings.

Sometimes both parties wish to stay in the former marital residence out of financial necessity or for strategic purposes. Without separation, many forms of relief from the court are not available (e.g., absolute divorce). Once the separation is ordered via the divorce from bed and board judgment, the parties can proceed with other claims for relief. Other times, one or both of the parties is unwilling to separate for fear of being charged with abandonment. A claim of abandonment no longer carries with it the social stigma of the past nor the legal implications so many fear. Still, abandonment is a fault ground which may be alleged in support of a claim for spousal support. Therefore, if the court sanctions the separation then there can be no conclusion of abandonment resulting from the final separation of the parties. Finally, a party may strategically make a claim for divorce from bed and board in order to bring allegations of marital misconduct before a court. Since the claim may be made after the parties separate, this is a measure for exposing the actions and behavior of the other party for what many may believe a tactical advantage.

Defenses to an action for divorce from bed and board:

There is no statutory defense to a divorce from bed and board. Overall, if the elements described above cannot be proven, then the divorce will not be granted. However, the following are sometimes used as defenses to the claim: 1) adultery, 2) condonation, 3) connivance, and 4) recrimination.

Whether the complaining party has alleged adultery, the defending party may allege adultery as a defense. Adultery is recognized as the voluntary act of sexual intercourse by a married person with a third party.

Condonation is a term in our law which typically means a conditional forgiveness. Although the opposing party has committed marital fault, by your actions you forgive the deeds done against you with the assumption that no such deeds will ever occur again. The actions which may constitute forgiveness include stating that you forgive the other party, continuing to live with that person, and sexual intercourse. It is assumed you have forgiven the other party because you did not separate nor seek immediate remedy for the wrongs done against you. The effect of condonation is that the party who committed the cruel and barbarous treatment may not have the behavior alleged against him or her. Only if the behavior occurs again, may the aggrieved party renew these claims.

Connivance occurs when one party causes or induces the other party to commit the marital fault. For example, a husband cannot later accuse his wife of adultery if he encouraged her to engage in sexual intercourse with a third party. Another example is found with cruel and barbarous treatment. If a wife attacks her husband or induces him to strike her, she cannot later claim he has committed marital fault if he does strike her.

Recrimination is similar to the idea of having unclean hands when bringing a claim for divorce from bed and board. If the party requesting the divorce from bed and board has committed conduct which would entitle the other party to a divorce from bed and board, this is called recrimination.

Effects of divorce from bed and board:

First and foremost, a divorce from bed and board is a judicially authorized separation and neither party may allege that the other has committed abandonment. One of the parties must now move out or there is a risk that the judgment will be set aside or declared automatically void as a matter of law. As a practical matter, the party seeking the divorce from bed and board usually requests the court to grant him or her exclusive possession of the marital residence upon the entry of the judgment. However, unless the claim for divorce from bed and board is coupled with another claim for relief such as child support or spousal support, the court may have no authority under law to say who is to move out.

The parties may not cohabit with a member of the opposite sex. Cohabitation means the act of two adults dwelling together continuously and habitually in a private heterosexual relationship, even if this relationship is not solemnized by marriage, or a private homosexual relationship. Cohabitation is evidenced by the voluntary mutual assumption of those marital rights, duties, and obligations which are usually manifested by married people, and which include, but are not necessarily dependent on, sexual relations.

The separation allows the parties to file any other claims which may be conditioned upon their separation. Our statute conditions equitable distribution (property distribution) claims upon the separation of the parties. Once the judgment is granted and the parties have separated, they may allege claims for equitable distribution. Claims of spousal support, custody, and child support are not contingent upon the separation of the parties and may be made at the same time as a claim for divorce from bed and board.

The party granted the divorce from bed and board may sell and convey real property without the permission or involvement of the other party. However, if the parties to the divorce from bed and board owned real property as tenants by the entirety, even after the entry of the judgment, the death of the party against whom the judgment was entered will not keep the prevailing party from inheriting the property. The contrary is true for the party who was granted the divorce from bed and board; should she die her rights in the property held as tenants by the entirety shall remain with her estate, not go to the other party. Please note, the entry of the judgment of divorce from bed and board will not affect the ultimate ownership interests or rights or titles to real and personal property.

Rights upon the death of the other party are affected by the entry of a divorce from bed and board. As with real property, the rights of the party against whom the divorce has been granted are impacted while the rights of the prevailing party do not change. As a married couple, a man and woman in North Carolina are bestowed certain rights upon the death of his or her spouse. Most of these rights are rescinded for the party against whom the divorce has been granted but remain intact for the prevailing party. Please note, the entry of the judgment of divorce from bed and board will not affect the right of either party to take property under a duly executed will. Therefore, it is prudent for a party going through divorce to seek assistance with the preparation of a new will.

In order to obtain a judgment of divorce from bed and board, fault by either party must be proven in one of the following ways:

Abandonment
Abandonment is a term which is misunderstood and frequently misused by the public. Many people mistakenly believe that simply leaving the marital residence, no matter the circumstances, constitutes abandonment. Our state courts of review have defined it as the act of one spouse bringing the cohabitation of the parties to an end without justification, without the consent of the other spouse, and without intent of renewing it. However, it is not necessary for one spouse to leave the other in order for abandonment to occur. Rather, by cruelly treating one’s spouse or refusing to provide support for one’s spouse, one’s conduct may compel the aggrieved spouse to leave the relationship. The aggrieved spouse would still be entitled under our law to claim the mistreating spouse had committed abandonment. When the conduct of one spouse causes the other to leave, it is called constructive abandonment. Although there is no bright line test for what constitutes constructive abandonment, generally the court considers all of the facts and circumstances of the case to ask whether the withdrawing spouse was justified in leaving. The conduct of the spouse engaged in the constructive abandonment must be willful and make it impossible for the withdrawing spouse to continue the marital relation with safety, health, and self-respect. Finally, mutual agreement to separate cannot typically be alleged as abandonment. The only exception is when a spouse is induced to agree to the separation because of the misconduct of the other spouse.

Maliciously turning the other out of doors
This term makes one imagine an angry spouse putting the other out of their house in the middle of the night and locking the door. The police would certainly be summoned and allow the spouse back in the home. Application of this fault ground may turn on misuse of the domestic violence statutes which allow a party to obtain an emergency order putting someone out of the home on at least a temporary basis. If the allegations which gave rise to the emergency order are later disproved, the aggrieved party may argue that he or she was maliciously turned out of doors.

What if the spouse leaves but then attempts to return to the home and you refuse to allow him or her back in? Is this maliciously turning the other out of doors? Maybe. However, North Carolina has a criminal domestic trespass law which may assist the spouse who remained in the home. For criminal domestic trespass to have occurred you must prove that someone left the home voluntarily, the remaining spouse informed the departing spouse not to return, and then the departing spouse attempted to return. This is a crime. While law enforcement may be reluctant to press the charge of criminal domestic trespass, one may want to consider protecting him / herself against the fault ground of maliciously turning the other out of doors by calling the police in this instance and creating a record of what occurred.

Cruel and barbarous treatment endangering the life of the other
Generally, this fault ground involves violent actions or threats of violent actions. However, our courts have ruled that an actual allegation of physical violence is not required to satisfy the requirements of this fault ground. It is clear that the behavior must be of such significance that it actually endangers the life of the other party.

This fault ground is limited in some ways. It appears that events which took place in the distant past will not qualify as fault grounds. Our courts have advised that the events must be fairly recent. Otherwise, the alleging party has difficulty explaining why he or she continued to reside with the abusive party. That leads to one of the other limitations of this fault ground: condonation of behavior. Condonation is a term in our law which typically means a conditional forgiveness. Although the opposing party has treated you in a cruel and barbarous manner, by your actions you forgive the deeds done against you with the assumption that no such deeds will ever occur again. The actions which may constitute forgiveness include stating that you forgive the other party, continuing to live with that person, and sexual intercourse. It is assumed that you have forgiven the other party because you did not separate or seek immediate remedy for the wrongs done against you. The effect of condonation is that the party who committed the cruel and barbarous treatment may not have the behavior alleged against him or her. Only if the behavior occurs again, may the aggrieved party renew these claims. The standard for the behavior after condonation is much lower, according to our courts, than for the original claims. Finally, the conduct complained of must not have been provoked. Simply put, you cannot start a fight and then complain when the other party responds in kind.

As a side note, the law does allow for a party seeking a divorce from bed and board to seek the remedies available under the domestic violence statute. Should a party seeking the divorce from bed and board allege marital fault which meets the definition of domestic violence, he or she may be entitled to a domestic violence restraining order being entered against the opposing party.

Offering indignities to the person of the other spouse so as to render his or her condition intolerable and life burdensome
“Indignities” is the catch-all term for embarrassing, humiliating, and generally treating the other party poorly. Each situation is different and the court must consider the facts and circumstances surrounding the alleged conduct as well as the overall way of life of the couple. What may constitute indignities in one marriage may be commonplace communication in another. In every case, the behavior must have been intentional and willful or at least consciously by the party committing the acts of indignities. The behavior must also be repeated or continuous in order to meet the standard. In order to render someone’s condition intolerable and life burdensome, our courts have required the actions to occur more than once throughout the marriage.

Our courts have required a party alleging this fault ground to specifically set forth the circumstances of each claim, the conduct of the complaining party, and an assertion that the complaining party has taken no actions to provoke this behavior or conduct. It is not sufficient to make a general claim of indignities by the other party. Each instance must be described in order to allow the defending party the opportunity to understand the allegations and adequately respond. In the same vein, the complaining party cannot make this claim if he or she has “unclean” hands. That is, one who is guilty of the same indignities will have difficulty alleging these indignities against another. Finally, the complaining party cannot provoke the behavior of which he or she complains. To simply allege one has been faithful and dutiful is not enough.

Excessive use of alcohol or drugs
This fault ground requires that the party “becomes an excessive user of alcohol or drugs so as to render the condition of the other spouse intolerable and the life of that spouse burdensome.” The question becomes whether the use is excessive and renders the other spouse’s condition intolerable and life burdensome. As with the other fault grounds, the actions must continue throughout the marriage and each case will be decided by its own facts. There is no bright line test of what constitutes “excessive” use or what “intolerable” and “burdensome” mean. As with the other grounds, a party with unclean hands will have more difficulty in proving his case. Good indications of excessive use may include receipts from the purchase of alcohol on a regular basis, witness testimony, criminal records, medical records, and participation in support groups for alcohol and drug abuse. One may consider testimony from friends, relatives, and health care professionals regarding proving intolerable condition and burdensome life.

Adultery
Adultery is recognized as the voluntary act of sexual intercourse by a married person with a third party. The behavior must not have come about as a result of connivance.

Choosing the Right Attorney

The nuances surrounding a family’s financial, emotional and physical well-being can be very complicated. If you are contemplating separation or divorce, or are already going through the divorce process, it is important to speak with a family law attorney to ensure your rights are protected and you are aware of options that apply to your specific circumstances. The attorneys at Hatcher Law Group have the experience to assist with your matter and help you make a fresh start. Please contact us today to schedule a consultation.