Family Law and Divorce

At Arnold & Smith, PLLC, we are committed to helping our clients through the emotionally charged and complicated process of obtaining a separation and divorce in an economical and effective manner. Please feel free to give us a call if you would like to speak with one of our experienced family law and divorce lawyers. We handle divorce cases in the greater Charlotte area as well as the Mooresville and Lake Norman area through our newly opened office. We are also happy to take cases in Iredell County, Cabarrus County, Gaston County, and Union County.

Collaborative family law enabled couples who have decided to end their marriage to work with their lawyers, and sometimes other family professionals and arbitrators, to reach a mutual agreement on issues such as division of marital assets (called equitable distribution in North Carolina) and alimony. This helps avoid the uncertain, expensive and time-consuming nature of battling the matters out in court. Obviously, collaborative family law will not be right for every one of our clients, but there are certain factors to determine when it is most suitable. These factors include:

• A client’s goals and ability to be a problem-solver in the process;
• A client’s [and their spouse’s] willingness to communicate and show appropriate behavior at four-way meetings between attorneys and clients
• A client’s [and their spouse’s] willingness to understand and respect differences in personalities and goals
• A client’s ability to be held accountable during the process and after any agreements are made.

However, in some cases divorcing couples are simply past the point where disagreements over assets and alimony can be resolved through out-of-court negotiation. In such cases, it is important to have an experienced and aggressive divorce attorney who is skilled in litigation. At Arnold & Smith, PLLC, our family law attorneys have years of experience in both settlement negotiation as well as litigation. We consult with our clients to determine the best individualized approach to take on each case. Contact us today to see if collaborative family law is an option for you, or to discuss taking your divorce to court.

Although “divorce” is sometimes colloquially used in North Carolina as a broader term to include court-ordered separation (deceptively referred to as “divorce from bed and board”), the only legally-binding method of divorce you can obtain in this state consists of an absolute divorce. This is also known as a no-fault divorce, and is designed to end a valid marriage and render both parties free to remarry.

In North Carolina, a spouse seeking an absolute divorce must meet the following criteria:

• The parties have a legal marriage;
• One or both of the spouses has been a citizen or resident of North Carolina for at least six months; and
• The parties have been separated for at least one (1) year with a desire to end the marital relationship

In some cases, an absolute divorce can be sought due to the incurable insanity of the parties, but this is a relatively high standard to prove. In these cases, the actual separation must be due to the incurable insanity and the period of separation must be longer.

The primary effect of a grant of absolute divorce is that the parties have a legal right to marry another person. However, there are also other important ramifications.

• Name: A wife has the right to resume the use of her maiden name, although she is not required to do so.
• Property: Equitable distribution looks at a couple’s overall financial picture and divides marital assets, property and debt in a manner that is fair, which is not necessarily a 50-50 split. For example, if one spouse sacrificed their career to take care of the home and/or children of the marriage, they may be entitled to more than 50 percent cut of the couple’s joint assets. In equitable distribution, money earned and property acquired during the marriage before separation are presumed to be joint assets, while income and property acquired prior to the marriage are presumed to be separate (and therefore not subject to equitable distribution).
  • If a claim for equitable distribution is not filed before the judge enters your final divorce judgment, your only claim to marital property will be that with your name on the title. This can cause a person to lose their legal claims over property that should be rightfully theirs, so it is important to speak with a reputable family law attorney to help you properly file a claim for equitable distribution before the divorce is final.

Absolute divorce does not have any effect on either party’s rights as it pertains to their children. Child custody and child support are independent legal claims which do not depend upon marital status.

A “divorce from bed and board” is a judicial separation that does not actually dissolve the marriage bond. As mentioned above, the term is slightly misleading because it does not have the legal effect of a divorce. Divorce from bed and board is relatively rare in North Carolina but is typically asserted to either force a spouse to leave the marital residence, obtain judicial authorization for separation, or allow a spouse to allege marital misconduct. To achieve a judgment of divorce from bed and board, the following circumstances must be met:

• The parties must have a valid/legal marriage;
• One of the parties must have been a citizen of North Carolina for the six (6) months preceding the suit; and
• One of the parties must have committed marital misconduct (examples of marital misconduct include abandonment, cruel and barbarous treatment, excessive use of alcohol or drugs, and adultery).

Once a judgment of divorce from bed and board is granted, equitable distribution and other claims contingent upon the separation of the parties can be asserted. The party granted the divorce from bed and board may convey property without the permission of the other party and a spouse’s rights upon the death of the other party are usually terminated.

At Arnold & Smith, PLLC, we understand absolute divorce, divorce from bed and board, and the myriad of legal processes that come with both. Our dedicated family law attorneys are prepared to help you determine the right strategy for you. Do not hesitate to contact our office to arrange a consultation with one of our family law attorneys about your case.