North Carolina divorce law does not require one spouse to pay for the other spouse’s attorney fees. The law gives the court discretion to order a spouse to pay attorney fees in certain circumstances. These include: when a spouse is ordered to pay postseparation support or alimony to a dependent spouse; when a spouse is ordered to pay child support and that spouse has failed to provide support which is adequate under the circumstances existing at the time of institution of the action; or in a case involving child custody. The law does not permit a court to order the payment of attorney fees by one spouse to the other in equitable distribution cases, although if a spouse commits certain acts which delay the case, he or she can be ordered to pay attorney fees to the other.
Under the North Carolina Rules of Professional Conduct for lawyers, attorneys are not permitted to represent both spouses in a divorce action, because the spouses’ interests are adverse and advice given which would benefit one spouse would likely be against the interests of the other spouse. A lawyer can act in a neutral capacity as a “scrivener” and write up an agreement that spouses have negotiated between themselves without giving either spouse advice as to how the agreement legally affects him or her. In the capacity of a “neutral” or “scrivener,” the lawyer is not representing either party.
Yes. There are many options for resolving the issues arising from separation and divorce without going to court. Often separated spouses, prior to hiring a lawyer, will engage a mediator who acts in a neutral capacity to help the parties reach an agreement as to their property, children and support. Lawyers are generally not involved in this process. If each of the parties has retained a lawyer to represent him or her, the parties may agree to a mediation in which the lawyers are present. Mediation typically results in a mediated settlement agreement signed by the parties which then is binding as a contract. The parties may alternatively choose to engage in an arbitration where an arbitrator makes a binding decision as to those issues the parties agree should be arbitrated. North Carolina also permits collaborative law in which the parties and their attorneys sign an agreement to attempt in good faith to resolve their disputes without having to resort to going to court. The procedure also includes an agreement where the parties’ attorneys agree not to serve as litigation counsel, except to ask the court to approve the settlement agreement.
A husband and wife can be divorced when they have lived separate and apart for one year, and at least one party in the divorce action has resided in North Carolina for a period of at least six months immediately prior to filing for divorce. Isolated acts of sexual relations between the parties during the one year waiting period do not stop the one year period from running. Parties can file for a divorce even if other issues in their case are not resolved. After a judgment of divorce is entered, certain rights arising out of the marriage end. Therefore these rights, including equitable distribution and alimony, must be asserted in the divorce action prior to entry of the divorce judgment.
People often receive a letter and perhaps a draft of a separation agreement from an attorney representing his or her spouse and confuse this with “being served with divorce papers.” A letter from a divorce lawyer representing your spouse is not service of divorce papers, and there is no court action involved. “Divorce papers” from a court consist of service of a Summons and Complaint for certain claims arising out of the marriage related to separation and/or divorce. The complaint may include claims for divorce, equitable distribution, child custody, child support, postseparation support, alimony and attorney fees. You are required to respond or answer the allegations of a complaint within 30 days of being served. There can be negative legal consequences if you fail to respond within the required period of time or obtain an extension of time in which to answer. It is very important to talk to a divorce lawyer once you have been served with a summons and complaint, as the divorce process is complex requiring professional help.
If you suspect that your spouse is having an affair, it is important to obtain evidence of the affair because illicit sexual behavior in North Carolina divorce law has a legal impact. In North Carolina, if a dependent spouse commits illicit sexual behavior during the marriage and prior to the date of separation, the court will not award alimony. If a supporting spouse commits illicit sexual behavior during the marriage and prior to the date of separation, the supporting spouse will be ordered to pay alimony to the dependent spouse. In order to obtain evidence of sexual misconduct by your spouse, you can consider the use of a private detective to provide surveillance of your spouse’s whereabouts. You can also obtain cell phone records or credit card statements which may track phone calls or expenditures. Do not put a listening device or wiretap on a home telephone to record your spouse’s telephone calls with a third party. This is illegal. Likewise, you should not put spyware on your spouse’s computer to track emails. This is also illegal. It is important to discuss what other action you can and cannot take regarding your suspicions with an experienced divorce lawyer.