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LEAGAL AGREEMENTS

There are numerous types of agreements related to family law.  The most common are

  • PROPERTY DIVISION

  • PARENTING AGREEMENTS

  • SEPARATION SEPARATION AGREEMENTS

PROPERTY DIVISION

 

Divorce is a traumatic experience in many ways, not the least of which is attempting to fairly and equitably divide your shared property. Property division cases (called Equitable Distribution) are famously contentious and complicated, but Lundell Law Firm has the knowledge and standing to guide you through this turbulent time. We offer compassionate counsel and robust representation in divorce proceedings. Let us put our firm’s experience to work for you.

North Carolina Rules of Equitable Distribution

 

Under North Carolina’s divorce laws, marital property and debt are divided according to rules of “equitable distribution.” In brief, equitable distribution means that marital property and debt must be divided in a way that is fair. It is presumed property will be divided equally between the parties, but there is more to it than just 50/50. North Carolina law presumes that an equal division of marital property and debt is fair; however, judges have a large amount of discretion in deciding your case.

Property Classifications

First your property must be grouped, or classified, into categories: “marital property” and “separate property.” These are legal terms defined by statute. Generally, marital property is property acquired during the marriage and before separation. There are a number of exceptions. Separate property is generally defined as property owned before marriage or inheritances or gifts received during marriage. Again, there are exceptions. Only marital property can be divided and distributed. Once the marital property is identified, it must be valued. Depending on the property being evaluated, it can be as simple as determining the value of stock by looking online or as complex as valuing a family business. Secondly, you must decide which of you will receive what asset. In addition, tax consequences must be considered: for example, a home with $100,000 in equity is not necessarily equal to a retirement account with pre-tax money valued at the same amount.

 

What happens if my spouse is withholding or hiding assets?

Your spouse has a legal obligation to divulge every asset that is subject to division. If it becomes clear that a spouse has attempted to withhold or hide assets, the judge charged with distributing the marital property may view this negatively and assign the entirety of the hidden assets to the other spouse. Additionally, as the division of marital property is entirely at the judge’s discretion, any attempt to hide or withhold assets that is found during the discovery phase of the trial may cause the judge to treat that spouse more harshly in terms of dividing assets.

Why is it vital to begin the equitable distribution process quickly?

It is crucial to begin the division of property process quickly, as you want to avoid a situation in which a spouse may liquidate or sell assets before they are available to be divided. Initiating the division of property proceedings quickly makes such evasion more difficult.

If you are considering separation or divorce, it is wise to seek early legal advice from experienced lawyers who can assist you in understanding the many issues surrounding the divorce process.  Call at (704)288-4096 or email consult@LundellLawFirm.com to set-up an initial consultation to discuss your situation with a knowledgeable Union County family law attorney, contact the Monroe, NC, office of Lundell Law Firm.

PARENTING AGREEMENT

 A parenting agreement (or parenting plan) is a written document that you and your ex-spouse create together to outline how you will handle the care of your children after your divorce. Creating an agreement helps both parents understand what the other expects of them and can alleviate conflict that often comes with separation.

Stability is essential for every child, and divorce has the power to upset even the most ridged schedule. A detailed parenting agreement can offset some of the negative effects of divorce by providing children with a predictable visitation schedule, thereby avoiding the constant question of “where will I be going today?”

You may have heard parenting plans also called custody agreements, co-parenting agreements, or a parenting time arrangement. No matter what you call it, you should consider creating one, even if your state doesn’t require it during the divorce.

What Should My Parenting Agreement Include?

Each state has its requirements for a parenting plan, and because every family is different, no parenting plan is the same. Most importantly, you must include details on how you will handle the following:

  • child custody

  • visitation for the noncustodial parent and the child

  • pick-up and drop-off transportation

  • medical care

  • education requirements

  • religious upbringing

  • holidays, and

  • child support and other financial issues.

 

Child Custody

There’s no doubt that custody is one of the most contentious and hot-button issues in divorces with children. But, if you can set aside your emotions about each other and put the children first, custody shouldn’t be too difficult. It’s most important to determine who will have physical custody of the children, meaning where the child will live most of the time and who will provide day-to-day care. If you can’t decide who should have physical custody, the court will decide for you using your state’s best interest factors. Keep in mind, the judge doesn’t know you or your family as you do, so it’s always best if both parents can work together to formulate the best plan for the children.

Visitation

Once you determine who will have physical custody, you’ll need to create a parenting time (or visitation) schedule for the non-custodial parent. In most cases, children will benefit from having a regular and continuous relationship with both parents, so if only the child lives primarily with one parent (the custodial parent), you must create a schedule that allows visitation between the child and the noncustodial parent.

Typically, the child will visit the noncustodial parent on weekends, extended vacations from school (like summer and spring break) and will split holidays between both parents. The children are used to seeing both parents on a regular basis, so it’s essential to create a schedule that will minimize the disruption to the children after divorce. Your visitation agreement should also clearly lay out which parent is responsible for transportation during parenting time.

 

Legal Custody

In most states, the court will award both parents joint legal custody of the children. Legal custody will allow both parents to have an opinion on major decisions that impact your child’s life, including decisions about medical care, religious upbringing, and education. Your parenting agreement should explain whether legal custody is shared or sole (awarded to one parent) and what will happen in the event of a disagreement.

 

Child Support

There’s no doubt that child support can be a touchy subject. That said, the law is clear that your children are entitled to financial support from both parents, regardless of custody. Your parenting agreement should include details on which parent will pay child support and how much. You can ask your attorney to determine your child support obligation by inputting your information (and your ex-spouse’s income) into your state’s child support formula.

 

Do I Need an Attorney?

No, not necessarily. You can develop a parenting agreement with your spouse, and once you put the terms in writing, you can submit it to the court. Or, if you can’t resolve all the issues on your own, you can participate in mediation, which is where a neutral third-party will help you solve your conflicts in a confidential environment. If you aren’t sure that mediation is for you, and you can’t negotiate an agreement on your own, it would be best for each of you to hire an attorney.

Keep in mind, even if you and your spouse agree on all the terms in your agreement, it would be smart for each of you to have an attorney review it before you sign.

What Steps Should I Take to Create a Parenting Agreement?

The first step to developing your parenting plan is to open the lines of communication between you and your ex-spouse. You’re not going to get anywhere if neither of you is willing to negotiate and sacrifice for your child’s benefit. Try to put yourself in your child’s shoes. Traveling between two homes isn’t ideal, nor is it easy for children, especially those who are school-aged. Before you decide how you’ll handle custody and visitation, think of the best way to ensure your children get what they need from both parents.

If you hire an attorney, you should be honest about what you want and what you’re willing to sacrifice for your children. Be sure to provide any documents, including pay stubs, tax returns, and work schedules to your attorney promptly.

If you participate in mediation, you should attend the session with an open mind, but more importantly, you should come prepared with your work and social schedule, your child’s schedule, and your ideal parenting plan arrangement. You’ll also need to provide any financial documents that the mediator requests.

Once you and your spouse agree on the terms of your parenting plan, you’ll need to present a signed copy to the court. Although most courts believe that parents know best, you’ll still need to get the judge’s signature for the agreement to become a valid, court order.

Be Sure Not to Violate the Court Order

Parenting agreements are legally-binding documents once the judge signs it, which means if you violate any provision, you’ll be subject to court fines or other penalties. If your arrangement no longer works for you, or you need to change the terms, you’ll need to follow your state’s procedure for modifying a court order.

If you are considering separation or divorce, it is wise to seek early legal advice from experienced lawyers who can assist you in understanding the many issues surrounding the divorce process.  Call at (704)288-4096 or email consult@LundellLawFirm.com to set-up an initial consultation to discuss your situation with a knowledgeable Union County family law attorney, contact the Monroe, NC, office of Lundell Law Firm.

SEPARATION AGREEMENT

 

SEPARATION PROCESS

How can I get legally separated in North Carolina?

A separation agreement or other written document is not needed to be considered legally separated in North Carolina. You and your (husband or wife) need to live in different homes to be believed to be separated. Also, one of you must state your plan for the separation be permanent. In general, you are not legally separated if your relationship has ended but you still live in the same home, or if you live in separate homes without the intent to be permanently separated (for example, for work purposes).

 

What is a separation agreement?

A separation agreement is a private contract between spouses who are separated or plan to separate very soon. A separation agreement includes agreed-upon terms dealing with various issues related to the separation, such as which spouse is responsible for certain bills, whether one person will continue to live in the marital home, or where the children will live. A typical separation agreement includes the details of separation, property division, spousal support, and if there are children, child custody and support.

Do I need a separation agreement?

A separation agreement is not required to be legally separated from your spouse. However, a separation agreement can resolve many of the legal issues involved in the end of a marriage. For example, you can decide how to divide your property and whether one of you will pay alimony to the other. In some situations, spouses may request that the separation agreement become part of their final divorce order.

Spouses who are able to resolve the issues related to their separation through a separation agreement can make those decisions themselves and avoid the need to go to court.

 

How do I get a separation agreement?

Separation agreements are generally prepared and negotiated by attorneys, who can tailor the agreement to the needs of your family. Contact Lundell Law Firm for more information about finding an attorney to assist you.

What are the requirements for a separation agreement to be valid?

Separation agreements must be in writing (not verbal), must be signed by both parties, and both signatures must be notarized.

Can a separation agreement include decisions about child custody and child support?

Yes, you can include provisions about child custody and child support in a separation agreement. However, if one of the parents later files a child custody case, a judge can order a different custody arrangement if the judge believes it is in the child’s best interest. If one of the parents later files a child support case, a judge may change child support if the amount agreed to does not meet the child’s reasonable needs or if there has been a substantial change in circumstances.

 

What is a Divorce from Bed and Board?

In spite of the confusing name, a Divorce from Bed and Board (a “DBB”) is not a divorce. A DBB is a court-ordered separation. DBB orders are available only under limited circumstances where the spouse requesting the order can prove serious fault, such as adultery or drug abuse. Once you have separated due to a DBB order, you can still resolve issues related to the separation with a separation agreement, as if the separation had been voluntary.

 

You can also file to ask the court to resolve issues such as property division and post-separation support through the DBB case. Once you are separated due to a DBB order, you will still need to wait one year and file for an absolute divorce to legally end the marriage.

What is post-separation support?

“Post-separation support” is a temporary form of spousal support paid by a supporting spouse to a dependent spouse who is in need of support, after separation but before divorce.

If you are considering separation or divorce, it is wise to seek early legal advice from experienced lawyers who can assist you in understanding the many issues surrounding the divorce process.  Call at (704)288-4096 or email consult@LundellLawFirm.com to set-up an initial consultation to discuss your situation with a knowledgeable Union County family law attorney, contact the Monroe, NC, office of Lundell Law Firm.

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