North Carolina Divorce Lawyers Blog

Articles Tagged with separation

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Carolyn Woodruff, J.D., C.P.A, C.V.A.
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Dear Carolyn,

I have a cousin, Bernie, who lives in another North Carolina city. She is mid-30s, professionally employed and has two school-aged sons who are involved in numerous sports, school and community activities. My cousin spends the majority of her free time working with and for her kids.

Her problem is her husband, who was obtained through an unanticipated pregnancy. He is very under-employed and is a slob who spend his free time on the couch or in bed and does just about nothing to help around the house or with the kids. Worse, he had never contributed a dime toward their (nice) house, including the mortgage, taxes, insurance, utilities or other expenses. She has paid for it all and the mortgage is in her name as he had/has no credit. He is emotionally abusive to my cousin and had a recent, well-documented affair.

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Dear Carolyn, 

We have a small family business. I do all the work with customers; my ex-wife does the bookkeeping. We both own the company as shareholders. We now are now separated. What protections do I need to put in place? She writes checks that are not for business expenses out of the business account.

– Concerned

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Dear Carolyn,

My wife and I have been married 20 years. Our child is graduating from high school this year, and we are miserable.  We own a home with lots of debt and we cannot afford to separate without selling our home first.  We both work, but there simply is not enough money to maintain two households without first selling the house.  Is there any way we can declare ourselves separated and maintain the same household until the house sells?   Why is the North Carolina waiting period for divorce a year?  I hear that one year is a long time as compared to other states.  Can we settle our property now?  We have retirement, cars and furniture, along with the house?

 

Carolyn Answers:

Generally, North Carolina requires 365 days of separation, with the intent of one spouse to live separate and apart forever, before a spouse may apply to the court for an absolute divorce. Separation in this state means, literally that the spouses, during separation, must have separate residences and essentially, conduct themselves as single for the entire 365 days. Isolated incidences of sexual intercourse, such as a weekend at the beach with an estranged spouse, do not start the 365 day period over.

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Sade Knox, Intern
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Kelley v. Kelley, T.C. Memo. 2017-798, 2017 WL 1251018

Facts: Husband and wife were married in 1982. They later entered into a Separation and Property Settlement Agreement upon their separation in 1994 (the “1994 agreement”). The two later divorced in 1999. The 1994 agreement resolved several issues between the two such as child support, alimony, and equitable distribution, but most importantly, the agreement contained a “Modification and Waiver” clause. In 2003, approximately nine years after the parties separated and four years after their divorce, the parties allegedly signed a document titled, “Amendment to Settlement Agreement.”

The ex-wife, approximately eleven years after the parties entered into the 2003 Amendment, filed suit against ex-husband alleging he had breached the 2003 Amendment. Ex-husband responded by filing a motion for summary judgment, which the trial court denied. Ex-husband appeals to the Court of Appeals of North Carolina.

Issue: Whether the ex-husband breached the 2003 Amendment.

Answer to Issue: No.

Summary of Rationale: Within the 1994 agreement, the “Modification and Waiver” clause explained that any modification or waiver of the agreement shall be consistent with the original formality of the agreement and reduced to a writing. In addition to being reduced to a writing, modifications also needed to be acknowledged by both parties before a certifying officer.

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In recent legal news, the Mississippi state Senate has passed new legislation that will have citizens of Greensboro and divorce attorneys alike glad that we live in North Carolina.

Unlike North Carolina, Mississippi law recognizes both fault-based and no-fault divorces. If the requirements are not met for a no-fault divorce, you must prove to a judge that your spouse has committed one of the fault grounds enumerated by the Court in order to be granted your divorce.  The new legislation has added two additional grounds for a fault-based divorce.

The only ground permitted for a no-fault divorce in Mississippi is irreconcilable differences. For the Court to grant this no-fault divorce, both parties must agree that there are irreconcilable differences between the parties that prevent them from continuing their relationship as husband and wife, and both parties must agree to seek the divorce.

If the parties don’t agree that they should divorce, the only way for a party to be granted a divorce is by proving to the court that their spouse has committed one of the fault grounds. One side must prove to the court that the other has committed some fault that should allow the party to be granted a divorce.  The most common grounds of fault are typically adultery and desertion.

The new legislation passed by the Senate seeks to add two more grounds – separation and domestic violence.  The separation ground would require that the parties have lived separate and apart for at least two years without the intention to resume the marital relationship.  The domestic violence ground would allow a person to seek a divorce if their spouse has perpetrated cruel and inhumane treatment towards them, including spousal domestic abuse.

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Milbourne v. Comm’r, T.C. Memo. 2015-13, 2015 WL 393040 (2015)

(a)  Facts: A husband and his wife separated. She proposed a separation agreement, which required him to pay $6,000 per month in alimony. The husband refused to sign this agreement, as he did not want to pay more than $2,500 per month in alimony.

The parties could not agree upon an amount of support and no agreement was initially signed. While the parties were negotiating, the husband paid the wife $36,000 in monthly payments of varying amounts, usually $2,000 but sometimes $4,000 or $5,000. After a total $36,000 had been paid, the parties signed an agreement calling for support of $4,500 per month, with certain possible future reductions.

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Today, let’s deal with the “date” wardrobe you should build over time (depending on your budget). This wardrobe selection is for Summer 2015 for dinners out, movies, theater, concerts and similar activities.

Find your own look and make it your own.  Be creative.  It will make you feel good about yourself.  Be your own person and have your own identity.  Here are some suggestions: Continue reading →

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Molinet v. Comm’r, T.C. Memo. 2014-109, 2014 WL 2573992 (2014)

(a) Facts: A husband and wife were married.  The wife was from Cuba and was admitted to the United States on a fiancé visa.  The husband controlled the marital finances, with minimal input from the wife.  She had access to the parties’ joint checking account, but rarely used it and did not have a good understanding of the United States banking system.  She paid her expenses with a weekly allowance from the husband.

The parties initially lived in Maryland, but they moved to Florida for the wife’s health.  To finance the trip, the husband withdrew $117,191 from his 401(k) plan.  The wife did not approve of the withdrawal, but felt she had no choice and reluctantly signed documents regarding the withdrawal.

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