When people research what it means to move toward separation and divorce, the first search topic is the law. Of course the Internet has vast amounts of information on North Carolina divorce laws. However, the laws that govern equitable distribution of marital property, alimony, and child custody are broad outlines of what a court would do and won’t help individuals understand what might happen in their particular situation. Google is probably not the way to find the right answers to your questions.
What planning for divorce in North Carolina really entails is figuring out how to have a series of necessary conversations with your spouse that must happen in order for you to separate and ultimately divorce.
Some or all of these conversations can be difficult. It will almost always be advisable to have attorneys and possibly other professionals helping with these conversations.
The series of conversations:
- What help do we need to have the conversations effectively?
- Will we separate and will it be a trial separation or a permanent separation?
- Who will move out of the marital home to begin the separation?
- How will we share parenting responsibilities from two separate homes?
- How will we divide the property, including real estate, retirement accounts and debts that we have accumulated while we were married?
- How will each spouse handle the expenses of their separate household? Will there be any reallocation of income from one household to the other in the form of child support and/or alimony?
The first major conversation should be what kind of help do you want in order to have those conversations effectively?
Since divorce is a legal process it’s important to consult and hire an attorney, and perhaps other professionals, to help you have these conversations. The first decision is to choose a type of attorney: one who uses traditional, adversarial negotiation tactics or one trained in collaborative law proceedings. Each type of attorney has different “conversation” approaches and considerations.
Residents of North Carolina facing divorce are fortunate that they can choose between court-based proceedings or collaborative divorce proceedings. Collaborative divorce attorneys help couples resolve the legal issues around separation and divorce without going to court. Litigation divorce attorneys may help resolve issues without going to court, but will always at least have the threat of court as part of the conversations and strategy.
There are a number of disadvantages to the way the conversations happen when attorneys are maintaining the threat of going to court as part of the conversations:
- Miscommunications: attorneys, not you, are having the conversations
- Needless antagonism: from an overly competitive and adversarial approach
- Over-reliance on legal norms: the law is really the lowest common moral denominator for the community
- Loss of control: the attorneys are driving the resolution
- Time-consuming, inefficient and expensive
Collaborative law proceedings, without the threat of court, can provide a healthier option. Collaborative divorce attorneys are specially trained and experienced in helping couples have the necessary conversations using non-adversarial conflict resolution techniques, such as interest-based negotiation and non-violent communication.
The conversations occur in a series of conferences with both spouses and both attorneys and any other professionals that may be involved as consultants. Each spouse also meets individually with his or her attorney to get one-on-one help with how to have the conversations so that their interests are protected, as well as plan for productive 4 or 5-way conferences that maximize the outcome for both spouses and the family.
Collaborative attorneys make the following commitments which are very different than the approach of traditional divorce attorneys:
- To competently and actively ensure that the spouse with whom they have an attorney-client relationship understands and is able to effectively assert his or her interests, needs, concerns, and objectives throughout the Collaborative Law Proceedings.
- To proceed with honesty, respect, and good faith toward the other attorney and toward the spouse represented by the other attorney.
- To actively involve both spouses in all settlement conferences that take place and to seek to empower them to find optimal solutions.
- To identify each party’s interests (needs, concerns, values, objectives), and to search for resolutions that address both party’s interests.
- To incorporate neutral non-legal experts such as psychologists and Financial Specialists to increase the effectiveness of the proceedings and maximize the potential for healthy and optimum outcomes.
Because of these commitments, collaborative law proceedings promote lasting agreements without needing the threat of going to court. These commitments also help to promote a healthy transition from the negative intimacy that has caused the deterioration of the marriage to a positive working relationship allowing couples to respect each other and communicate effectively after divorce. In general, the collaborative process is often a more efficient, healthier, and less expensive way to approach divorce.
For more, see Planning for Divorce Part 2: What Are the Necessary Conversations.