New Divorce Options Presentation

I find that many clients are completely unaware that they can actually choose the process for resolving their family law or divorce issues.  

As many people are stunned to discovery, in North Carolina you don't have to go to court to resolve the issues of property division, cash flow, support (alimony and child support), and co-parenting (child custody).

While a legal divorce does require court action, the other and usually more pressing issues can be resolved privately, through a number of other processes.  

I have created a presentation that explains the basics of each process and briefly analyzes the pros and cons of each.  This was initially presented to a large Triangle company through its employee services program.  But, I think many more people can benefit from this information.

This informaiton may help you discuss your options with each other, and with any professionals that you consult.  

Feel free to contact me if you have questions about this information.  

Getting Divorced: What Should We Do With the House?

Perhaps the most common property division issue in divorce matters is “what do we do with the house?”

The marital home is a big issue for several reasons.  The house is often the largest asset that a couple owns.  Cash flow issues frequently create the need for more cash, creating a need to liquidate the equity in the house.  One spouse may be emotionally tied to the home for sentimental reasons.  The parents may want to keep the house for the sake of the children.  

Suffice it to say, there are often many issues at play when making decisions about the family home. 

That being said, most couples’ decisions regarding their home fall into one of the following options:

1. Selling the house

This is frequently done when a couple cannot afford to maintain the marital home as well as a second home for a spouse that moves out.   It also works for couples that no longer need a large home.  This is also the only option if neither the husband nor the wife wants to keep the home.

2. One party keeps the house. 

This may work when one of the spouses wants to keep the house, and the other spouse does not.   This is also common when the parties feel that is important to keep the children in the house for continuity.   Frequently one spouse “buys out” the other’s interest in the home.

  3. One party stays in the house for some period of time, then the house is sold.

This works for a lot of couples that need to buy time.  The couple has to then determine how the expenses of the home will be paid until the home is sold.

  4. The parties keep the home, but rent it to a third party.

This option is less popular, as most clients prefer to simply sell the house if neither wants to live there.  And, finding renters can be a challenge. However, in the days of declining equity, this option may allow the couple to avoid a loss on the sale of a home until the market turns around.

  5. Nesting

Nesting occurs when the parties keep the home and alternate time in the home.  This is an option when the couple puts a high priority on keeping the kids in the home.  The parents have to figure out where they will live on their “off” days, which sometimes requires keeping up three homes instead of just two. 

The marital home is often a central issue in a divorce negotiation.  There are many possible ways to address the house.  The important thing is that the couple finds the solution that works for them and their family.  In a collaborative divorce, the parties have the time, space, safety and advice to do just that.

Randolph (Tré) Morgan III is an experienced family law attorney accepting cases in Raleigh, Cary, Apex, Garner, Fuquay-Varina, Clayton, Smithfield, Wake Forest, RTP, Durham, Chapel Hill, Holly Springs and surrounding areas.  He focuses his practice in divorce, child custody, alimony, child support, equitable distribution, property division, paternity, guardianship and other family related matters.  

Online Legal Divorce Forms and Separation Agreements

Over the last few years, financial struggles have caused many people to look to online services for help in resolving their divorce issues.  These services typically provide low cost form separation agreements that can be purchased, downloaded and then completed by a couple.  These forms can typically contain provisions for property distribution, alimony, post-separation support, child custody, child support and separation.

I strongly support the movement to help people resolve divorce issues and reach separation agreements at a reasonable cost.  However, there are significant risks with using these online divorce agreements.

In this series of articles, I'll address some of the issues that need to be considered before choosing to use online divorce forms and separation agreements.

Perhaps the biggest issue with these online divorce forms is that the companies specifically state on their websites that the forms are not a substitute for solid legal counsel.  For instance, LegalZoom.com states the following on the front page of its website (albeit at the bottom in a smaller and lighter font):

“Please note that LegalZoom is not a law firm, does not act as your attorney and is not a substitute for the advice of an attorney. Rather, it helps you represent yourself in your own legal matters. If you seek representation, are involved in litigation or have complex legal issues that cannot be resolved on your own, we recommend that you hire an attorney”.

Further, the online documents I have seen from clients contain a similar disclaimer in bold print on the front page of the form.

Specifically, the phrase “complex legal issues” presents a problem.  How exactly is someone who is not an expert on North Carolina family law supposed to know whether they have a complex legal issue?  How do you know whether this online legal form is going to be legally sufficient for your particular case?

One specific issue that I have seen is this:  Many clients use these online forms and believe that the matters in the agreement are forever settled.  Then something changes and the other party files a lawsuit that would alter some part of the agreement.  They typically tell me “I would not have agreed to this agreement if I had known that it could have been changed later by a court.”  Any North Carolina family law attorney could have warned about that issue up front.  That is the kind of information that people need to know before they sign any agreements.

In my mind, using an online separation agreement form is not necessarily a bad decision.  But, using an online separation agreement without at least reviewing it with a family law attorney may well cost you more in legal problems down the road then you are ever likely to save by avoiding the limited expense of some up-front advice by a knowledgeable lawyer.

In the next post, I will discuss some privacy issues with online separation agreements.

Randolph (Tré) Morgan III is an experienced family law attorney accepting cases in Raleigh, Cary, Apex, Garner, Fuquay-Varina, Clayton, Smithfield, Wake Forest, RTP, Durham, Chapel Hill, Holly Springs and surrounding areas.  He focuses his practice in divorce, child custody, alimony, child support, equitable distribution, property division, alienation of affection, criminal conversation, parentage, guardianship and other family related matters.  He is skilled in litigation, mediation, collaborative divorce, arbitration and traditional negotiation.