No matter the reasons behind your decision to divorce, you want a settlement that you think is fair. You don’t want your voice sidelined and wish to protect your rights to property and the children. You might also be seeking spousal support. Having your day in court might seem like the right option, but is it? Will arguing your side in court provide the best chances for your desired settlement?
The short answer is it depends.
With North Carolina having a slightly higher divorce rate than the national average, understanding the state’s divorce options is important.
At Jetton & Meredith, PLLC, we have experience in providing legal representation in many types of divorces. Each divorce is unique but there are some overall considerations that should be evaluated to determine whether a litigated or mediated divorce is in your best interest.
Litigated Divorce
In a litigated divorce, spouses and their attorneys argue for their position before a judge in family court. Points of contention can include how property is divided, spousal support, child custody, and child support. If spouses cannot reach an agreement outside of court, litigation may be the only option.
Litigation is often appropriate in the following circumstances:
- A spouse is physically, mentally, or emotionally abusive
- A spouse is hiding assets
- A spouse is an unsuitable parent
Former couples may end up in court if they are highly adversarial and wish to punish each other. North Carolina law, however, requires mediation prior to going to court if the disagreement includes a child custody or asset division dispute. A motion can be filed to waive mandated mediation, and a family court judge will decide whether to grant the request.
At Jetton & Meredith, PLLC, our goal is to resolve contentious issues and negotiate divorce settlements that work for both parties. We also understand that isn’t always possible.
If you take your divorce to trial, keep in mind that the in-court fighting is public record. Assets, debts, and other information will be public. Your children may hold memories of that battle for years to come. Litigated divorces often take longer than those resolved through mediation. An experienced attorney can ensure your side is strongly represented before the court., but in the end, the judge decides custody, support, asset division, and other aspects of the divorce.
Mediated Divorce
As we stated earlier, there are certain situations in which North Carolina requires an attempt at mediation before heading to court. In addition to this requirement, there are times when the entire divorce negotiation and settlement can take place outside of a court proceeding.
The mediator guides structured but open discussions about the individual elements of your divorce. Each spouse can have their own attorney. The mediator is a neutral third party and does not offer legal advice. The goal of mediation is for both sides to agree to terms in a civil manner. Instead of a judge determining the outcome, the spouses have more control. Because the terms are agreed upon jointly, agreement violations are less likely. Unlike a litigated divorce, information discussed in mediation remains private.
Arbitration also keeps divorce arguments outside of the court system but is different from meditation. An arbitrator acts much like a judge. They hear the arguments from both spouses and make a ruling on the disputed issues. Their decisions are binding. Only a court can make modifications.
An option that combines mediation and arbitration is available. The process begins with a mediator working with both sides to settle their differences. If there is a dispute that cannot be negotiated, the mediator then plays the role of arbitrator and issues a binding ruling.
Family court does have some involvement in mediated and arbitrated divorces. Divorce settlements made through negotiation are presented to family court for a final approval and divorce decree. Many counties require at least one of the spouses to appear in court to provide testimony before a judge determines whether to grant the divorce. In Mecklenburg County, a court appearance isn’t necessary.
North Carolina Divorce Laws
Fewer than half of the U.S. states mandate a separation period before a divorce can be granted, and North Carolina is one of them. Here, a one-year-plus-one-day separation is required. Separation means living in different homes. A separation agreement but not required to prove spouses have lived separately. North Carolina is a no-fault divorce state so there are no grounds available that can speed up the process. To file for divorce, at least one spouse must currently live in the state and have lived in the state for at least six months before filing.
North Carolina is an equitable distribution state. Equitable does not always mean equal. The law presumes equitable to be a 50/50 split but also allows for assets to be divided in any proportion. Marital property can be divided while separate property cannot. Property acquired between the separation and divorce is subject to potential division.
Strategic and Compassionate Legal Counsel
Divorce is never easy but can be less stressful with the right representation. Even in uncontested divorces, skilled legal counsel can help you think through aspects and decisions you might not have considered.
If you are considering divorce, schedule a consultation with one of our experienced lawyers by calling (704) 931-5535 or using our online form.