Let’s start with the basics: what’s the difference between separation and divorce?
That’s not quite as easy as it sounds. Unlike many states, the process of legally ending a marriage in North Carolina is typically a two-step process.
First comes separation. This officially begins the day you and your spouse start living apart, and you don’t need paperwork to do that. But according to attorney Erik Mazzone, ignoring the paperwork isn’t a smart thing to do.
“A separation agreement is a legal document that spells out specifics on critical issues: how property is divided, alimony will be paid, custody and support will be handled. It can protect you from future misunderstandings and changes in living situations.” Mazzone says that some couples need the help of an attorney to create a separation agreement, while others can handle negotiations themselves.
The only issue not contained in a separation agreement is the divorce itself––the officially recognized dissolution of the marriage. That’s step two.
“From a legal perspective, it’s the easiest part of the process,” says Mazzone. “It doesn’t involve money or children; it simply represents a change in marital status. But there are a number of documents. And a divorce can only be obtained after a year and a day of separation.”
So everything is crystal clear, right?
Ask Tim. He thought his separation agreement meant he would pay alimony until his divorce was official, when a judge would decide long-term issues. He was wrong – he could be paying alimony forever.
Which is proof that negotiating during the breakup of a marriage can be a daunting task. Things can get ugly, and end up hurting children, friends and family.
Ask Sharon. She wanted the police to help get her children back from her husband. She had her separation agreement as proof of custody. They refused to help.
It’s understandable, then, that many couples can’t do it alone. That’s why lawyers and other professionals are there to smooth the way and offer guidance. And even with outside help, it’s difficult for ex-partners not to let old issues get in the way.
Ask David. He and a well-meaning counselor struggled through the legal thicket of his separation agreement, trying to figure out if he could continue mental health treatment for his child after the mother wanted it stopped.
So what should you do? Ask Mazzone.
Hard as it may be, he says your best preparation for negotiations is to get your emotions under control and consider “some basic, and not-so-basic, points.” Specifically, understand: What you really want and need; what your spouse really wants; what your financial situation is, and is likely to be; and what the law has to say.
Mazzone is a North Carolina reporter on emerging domestic case law for the annual Law in Fifty States reference guide, and a frequent lecturer on domestic law issues. “Above all,” he says, “do your homework. Don’t try to negotiate blind, whether you or someone else is negotiating on your behalf.”
Ask Rebecca, who found herself in a very bad spot. She couldn’t afford to get her children all the things they need, and she hasn’t had an increase in child support in six years – it wasn’t spelled out in the separation agreement, and now she doesn’t know if it’s even an option.
One way or another, things will get settled.
If you decide to try one-on-one negotiations with your spouse, Mazzone says there a many tactics you can try. (See box.) But he also offers this caution: “If you can’t settle under your own power, don’t wear yourself out trying. Trust your instincts on what you want – but not necessarily on what the implications of your decisions might be.”
Move on to the next step – get help from a professional. “Talking to an attorney now can help you avoid devastating mistakes. If this outside help isn’t successful, then you go to the court of last resort” – that is, the courts themselves.
In the end, though, the vast majority of couples in North Carolina opt for private settlement. Which, according to Mazzone, should come as no surprise. “It’s a much less contentious and unpredictable outcome than letting things deteriorate to the point that they can only be left to the wisdom and whim of a judge.”
Ask Alicia. She expected the worst. But thanks to a wise relative, she planned ahead, got good counsel upfront, and went into negotiations with confidence. She came out with a fair settlement, a secure future and – most surprising of all to her––her nerves intact.
If you go it alone: Negotiating 101.
- Negotiate in a safe, neutral place. “Break off negotiations immediately if things get hot – a fight will only make the next session harder.”
- “A good starting point for discussions is to list all the areas you agree on. There may be more than you think.” Aunt Edna’s lamp? It’s yours. The rock collection? You’ll part with it willingly.
- Now the harder stuff – what you can’t agree on. Hear what your spouse has to say, without arguing the points. Try to get your spouse to hear what you have to say, without raising your voice. “Be careful not to fence yourself in too early by indicating some dollar amount you’ll offer, or you’re willing to accept – this can set expectations too high, or cheat you out of what you’ll need to live on.”
- “Think about the items you’ll get versus their value: the lower the values on your items, the more items you’ll get in a 50% division.”
- Address all issues at once. “You can deal with key areas–– child custody, property, support––at different times, but it generally makes more sense to do it all at once. It promotes closure, reduces expenses and opens up options for creative negotiations.”
- Look at the facts, not your perceptions. See if you can use those facts to create solutions instead of conflict. “At impasses, talk together about what the likely outcome would be if you have to go to court. An outside expert may come in handy. Statistics predict you’ll be able to settle issues that seem insurmountable now.”
- Look for points of leverage: “secrets your spouse doesn’t want made public; property he or she wants; a sense of duty; or pride in being known to do the right thing.”
- “The most important fact to keep in mind: once signed, separation agreements are binding contracts.” Mazzone strongly advises you at least meet with an attorney to review any proposed settlement agreement before you put pen to paper.
