The Raleigh Family Lawyer

Clients frequently ask me whether they can be legally separated if they are still living in the same house.  They ask whether it is sufficient to sleep in separate bedrooms, live in different parts of the house, or arrange a schedule where they are never home at the same time.  There are countless scenarios in which a couple is emotionally separate, but not legally separated.

This idea of an "in-house separation" makes sense in tough economic times.  Many couples cannot afford two leases or mortgages.  But, they don't want to wait forever to be eligible for divorce. 

The problem is that in North Carolina, in almost all cases, the parties have to be physically separated for 12 continuous months before they can even ask for a divorce.  (There are some rare exceptions to this rule, but they are beyond the scope of this post).

In North Carolina, legal separation means living in separate dwellings.  No matter how "separate" your lives, you have to live in separate dwellings to actually start the 12 month separation period in North Carolina.

Other states, notably Virginia, may allow in-house separations.  But, North Carolina does not. 

Each case is different, and everyone should consult an attorney about their specific case and situation before making decisions.  But, at least to date, North Carolina does not recognize in-house separation.

As this story on the Today Show explains, more and more Baby Boomers entering a second or third marriage are considering prenuptial agreements, aka "prenups". 

The goal is to protect assets that the parties have worked their whole lives to build and to prevent legal wrangling if the marriage ends in divorce.  And, given that the odds of a divorce go up with each subsequent marriage, it is worth considering.

Each state has different requirements for prenups, so you need to consult an attorney in your area to have a prenup drafted and to fully understand the pros and cons of these agreements. 

As a recent article in the August edition of Money Magazine points out, the Tipper and Al Gore split up has highlighted the issues of "gray" divorces.  Gray divorce is the label given to divorces of couples that have been married 20 years or more.

The article addresses some of the most common issues involved in a gray divorce; decisions about the house, retirement accounts, cash flow and debt payments.  But, an issue that many gray divorce clients have not thought about is how their divorce will affect their retirement  planning. 

In many gray divorces, at least one of the couples is less than ten years away from retirement.  Therefore, the financial planning involved in dissolving the marriage is an integral part of retirement planning.  The financial arrangements of a divorce set the stage for the parties' financial futures.  If the next stage of a party's financial future is retirement, then the financial portion of the divorce will have an enormous impact on whether, when and how a party can retire.

In many ways gray divorces are identical to any other divorce.  However, the impending retirement of the parties to a gray divorce makes proper handling of the financial issues even more crucial.

This recent article from New York magazine highlights an issue that may be pushing couples into divorces without their even knowing it.  It is easy to imagine how "hating your life" can lead to doubts about the major parts of your life, including your spouse and your marriage. 

The good news is that if this article resonates with you, you're not alone.  And, recognizing what is causing your angst may help you avoid any unnecessary negative consequences, like divorce.

When confronted with an oncoming divorce or separation, most clients instinctively and anxiously want to know "what the law is" in their case.  There are actually two answers to that question, one of which is rarely ever addressed by family law attorneys.

Most lawyers will readily tell their client what the law "is" by explaining the effect of the laws.  However, they often neglect to inform their clients about the role of the law.

In short, in family cases, the law is the set of rules that the community has chosen to resolve family disputes when the parties cannot find a better way to resolve their issues.  It is Plan B, a fallback option, a parachute, the rules you will play by when all else fails.  It is not the be all, end all of family law cases.

You certainly can choose to resolve your case by using the law as your standard.  But, you don't have to. And in the opinion of many wise and experienced family lawyers, you should at least look for better options before you choose to let the law determine the outcomes of your issues.

Obviously, some family laws have to be followed (e.g. all separation agreements in North Carolina have to be in writing with a notarized signature of each party) And you should consult with an attorney about which laws are mandatory and which ones are optional.  But most of the laws that determine the cash flow, property division and co-parenting issues in a divorce are elective.  That means that you can choose to follow the law when resolving these issues, or come up with a better solution that fits your family. 

The law is useful, important and worthy of respect.  It serves as as very useful comparison for any solution that you are considering in resolving your issues.  But, the law is not necessarily the best standard to use in resolving your family law issues.  In the end, the law is simply the set of rules you will play by if you can't agree to do something better.