Tag Archives: NC Divorce Law

Why You Should Download My Free Book

Download my free book, “Negotiating the Good Divorce” for more about negotiating a healthy divorce with your spouse.  Get your life back sooner, preserve more of your assets, and protect your children from a harsh, long-lasting bitter divorce with a collegial approach to divorce. Continue reading

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Divorce Mediation in North Carolina

Readers of this blog who are interested in using mediation in their own divorces are cautioned that discussions with divorce attorneys may prove completely misleading. That is because the North Carolina courts and bar association have created a version of “mediation” that bears little resemblance to the real thing.  I have met many clients who went for a consult with an attorney, asked about mediation and were told, “Don’t worry, we do mediation as part of the litigation process.” So I though it time to explain the difference between what I shall call “real mediation” and “phony mediation.”

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My Latest Book as a Free Resource for You

Over the years, I have written several books on divorce and achieving a healthy, fair divorce for you and your spouse.  My latest book is titled Negotiating the Good Divorce, How to Divorce with Grace, a Little Class, and a Lot of  Common Sense, and I have decided to offer as a free download for you here on my website.  For now, individual chapters are available in PDF format.  Kindle and eBook versions are in the works. Continue reading

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Divorce and the American Legal System: a Poor Fit

It is in the field of divorce that the image of lawyers finds its most odious expression and where legal training is most disabling and counterproductive. Divorce lawyers have a terrible reputation among the lay public for being cynical, indifferent to suffering and greedy for ever-larger legal fees. There are, of course, divorce lawyers who do not fit this stereotype. But, in over thirty years in the field I have met more who do fit it than ones who do not. It is not that divorce law attracts amoral people. In fact, some of the most sensitive of students I met in law school were attracted to “family law” where they thought they could help families.

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Co-Parenting after Divorce

Co-parenting in divorce has become an increasingly attractive and sought after arrangement. In contrast to the conventional sole custody in which the mother typically has all the responsibility for the children and has the children with her most of the time, co-parenting emphasizes an equal or nearly equal role for fathers. Co-parenting fathers have the children with them for more overnights and play a larger role in the many tasks associated with parenting, tasks such as clothes shopping, extra curricular activities and homework. Today, the majority of mothers are employed full time and the simple logistics of two career couples require co-parenting. It is too exhausting to have a full time job as well as all the responsibility for raising the children. So divorcing couples are moving to co-parenting out of simple necessity and the need to survive.

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The Six Signs of Impending Divorce

The next time you are in a restaurant look for the sad couple eating dinner in silence. They make little or no eye contact and have little or no conversation. They are completely disengaged and are simply enduring the meal until they can finish and leave. That is a couple on the verge of divorce.  It may not happen soon and may not happen at all because there are couples who are held together by nothing but inertia and fear. But at least one or both of these unfortunates are thinking about divorce.

There are six signals of impending divorce.

1. No Conflict Resolution

The noted relationship and divorce researcher John Gottman has argued that it is not lack of communication that sinks a marriage but, rather, lack of effective conflict resolution. Couples who have not evolved a way to resolve differences without injury to the relationship end up avoiding disagreement and conflict. One or both has arrived at a point of despair that it is pointless to try to resolve a difference with his/her mate. It may be that one or both are simply conflict avoidant, or one or both may regard every conflict as a fight to be won by bullying the other into submission. What matters is that someone has given up. Differences are submerged resulting in a loss of respect, increasing distance and gradual withdrawal.

2. Emotional Disengagement

Emotional engagement is a minimum requirement for the development and maintenance of intimacy. Willing discussion of feelings, one’s own feelings and the other’s feelings are a part. Interest in the emotional life of the other and empathic engagement of each other’s emotional life all constitute the required elements for an intimate relationship.

3. Disaffection

Emotional disengagement is generally accompanied by the withdrawal of affection. If your wife has disengaged emotionally from you she probably doesn’t feel much love for you. Divorcing people commonly say they have fallen out of love.  And depending on how sour the relationship has become one or both probably don’t like each other very much.

4. Lack of Sex

Sex both expresses and reinforces emotional connectedness. When a couple has not had sex in a long time it is usually a reliable indicator that emotional disengagement is advancing steadily. It is yet another indicator that the partners take no pleasure in each other and that the bonds are rapidly eroding if not already in a terminal state.

5. Increased Focus outside the Marriage

Empty marriages are boring. Some couples compensate by pouring themselves into their children so that child centered activity becomes the sole content of family life. Others pour themselves further into careers, working late every night so the time with the other is minimized. And as emotional satisfaction is sought exclusively outside the marriage the probability of an affair soars. The majority of affairs I see in my practice have started with a coworker who takes an interest and is fun to be with.

6. Preparation for a Single Life

I recall a couple I worked with many years ago in which the husband, as part of his planning for the coming divorce, took a second mortgage on the house to pay for a hair transplant to improve his dating prospects. Although a bit extreme, it is typical for the initiating spouse to begin preparing herself or himself by getting in shape, losing weight, attending to hair and wardrobe and other things to enhance appearance. And particularly with women who have stayed home, we often see a new interest in refreshing or acquiring a career to be less dependent on the earnings of the husband. We also often see the initiator taking up an activity such as tennis or golf without involving the other spouse and generally beginning to build a social network as a single rather than as a couple.

What to Do?

If you see yourself in this scenario your marriage is in trouble. I would not try to prognosticate about the precise tipping point beyond which a marriage is absolutely doomed, but I can say that these signals, or at least most of them, are present in almost every divorce I mediate.  At a minimum it is time for a long and honest talk with your spouse. If you can’t have that talk without it deteriorating into blaming and recrimination, suggest an urgent session with a marriage counselor or family therapist.  If you are heading for divorce, the sooner the two of you face the issue and plan for an amicable separation, the better your chances of achieving a good and non destructive divorce.

I am always available to answer any questions you have about North Carolina divorce law, custody issues, or separation and settlement agreements.  You are under no obligation and remember:  Divorce doesn’t have to be adversarial.  You can achieve a good divorce.  I can help.

Sam Margulies, Ph.D., J.D. 
(336) 669-3141
sam@sammargulies.com

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Telling Your Spouse You Want a Divorce

Excerpted from Chapter 3 of Sam’s FREE eBook, The Successful Divorcesam_margulies

What is the best way to tell your spouse you want a divorce? It will be helpful to you to understand the emotional process of divorce before you talk to your spouse. Continue reading

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Good divorce vs. Bad divorce

To understand the differences between good divorce and bad divorce requires a distinction between the two things: the fact of the divorce and the way of the divorce. The first refers to the losses that usually accompany the end of a marriage. There are inevitable dislocations as some or all of the family have to adapt to new homes, changed economic circumstances, new parent-child arrangements and all the feelings that come with major change, feelings of loss, anger, humiliation, failure, insecurity and fear for the future of oneself and one’s children. At its best, divorce is a painful and stressful experience for all whether done well or poorly. The second factor is the way or the how of divorce. This refers to the manner in which the couple gets divorced. Do they negotiate a settlement of child-related and financial issues that both regard as fair or is it a war of attrition to see who can bludgeon the other into submission? Do they retain the capacity for civil and cooperative communication around the children or do they forfeit this to bitterness and recrimination? Do they retain control over the negotiation process or do they give that control up to contending lawyers and the judicial system?

The fact that some couples have ugly divorces and others have decent divorces is not explained by chance alone. We know that there are steps that couples can take that dramatically reduce the level of conflict in divorce. And we know that reducing that level of conflict also reduces the impact of the divorce on both the couple and their children. For the past twenty years mental health counselors have been encouraging divorcing clients to use mediation rather than adversarial divorce as a way to negotiate settlement agreements. We know that most couples who mediate do so successfully. About 80% of those who try, succeed. We also know that those couples conclude their agreements in much less time, at far lower cost and have a much higher rate of compliance with agreements than do couples who settle their divorces through traditional methods.

In mediation the focus is on keeping the divorcing couple in control of the process. A mediator helps the couple to have discussions and negotiations that they are unable to have on their own because of the deteriorated state of their relationship. Issues related to parenting, support and division of property are all explored and resolved by the couple facilitated by the mediator. The role of lawyers is changed, in this system, from surrogates to advisors and consultants.

Contact me anytime you have any questions about North Carolina divorce law, custody issues, or separation and settlement agreements.  You are under no obligation and it would be my pleasure to answer your questions.

Sam Margulies
(336) 669-3141
sam@sammargulies.com

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The Do-It-Yourself Divorce

I have long been convinced that with a few scalpels and clamps I could remove my own appendix in a pinch. But that conviction does not mean that it would be a good idea to attempt nor does it mean I would survive the operation. And so it goes with many of life’s tasks that don’t seem so difficult that we couldn’t do it ourselves.  I am frequently asked this about divorce.

“We don’t have much money and we don’t have kids and we’re in agreement on everything. Why not just download the forms from the web. Do it ourselves and save the bundle that the lawyers will charge us?”

With that frequently asked question in mind I thought I would outline under what conditions couples should or should not try it themselves.

The simplest divorce is one in which there has been a short marriage with no significant property accumulated during the marriage, no children and two employed and self sufficient spouses. No children means no parenting or child support issues. Two economically self-sufficient spouses means no alimony issue. And little or no property means no need to detail how the property is to be divided. Under these conditions there is really no need for a written settlement agreement. The couple separates and after the statutory required waiting period files for divorce using forms and directions easily available on the Internet. In some states you don’t even need to go to court; you just do it by mail. In other states a court appearance is required but the court personnel will usually talk you through the pro forma hearing.  Feel free to contact me personally for specifics on North Carolina divorce law.

Recognize that there are two parts of a divorce. The first part requires that you agree on the issues of children and custody, financial support and division of property. The settlement agreement is an enforceable contract that permanently resolves all the child related and economic issues. If you need a settlement agreement and you are not very experienced in drafting contracts you probably need a little help from a lawyer, mediator or at least a knowledgeable paralegal. Once you have a drafted settlement agreement it is relatively easy to do your own paper work and get yourselves divorced. But even in a seeming simple divorce there may be issues that if not written down may result in anger and economic loss.

Consider Pam and Tom who have been married two years and have no children. Tom is self-employed as a contractor and Pam is an assistant professor at a local college. At first glance the couple felt they had nothing to negotiate. They had always kept separate bank accounts and just assumed that each would keep everything in his or her name. This is fine, but they have to recognize that they may each have rights and needs that are provided by law.

For example, during the marriage Pam has increased her retirement account by $10,000. Tom is entitled to a share of it. More complicated yet, during the marriage Tom’s business has doubled, he has earned a lot of money and used it to buy a lot of equipment. According to law, Pam is entitled to a share of the increase in value of the business including both hard assets like the bulldozer and the accounts receivable but also the goodwill value that has increased during the marriage. Finally, Tom, who has high blood pressure, needs to stay on Pam’s health insurance plan for the eighteen months their state requires before it will grant a divorce.

If Tom and Pam just assume that each keeps his/her own assets all will be well unless one of them has second thoughts later. After the divorce when Pam finds out that Tom has been dating her best friend she may decide that she acted too hastily in not pursuing Tom’s business assets. In many states she would have no trouble reopening the case because there was never a legal finding with respect to these assets. And when, out of anger, she cancels Tom’s medical insurance without telling him and he has an emergency appendectomy two weeks after the coverage disappears, there is going to be trouble and both may wish they had attended to these issues in a proper document.

What Pam and Tom should have done was to obtain a few hours of professional help to understand their choices. Property distribution law is very complicated. You may have all sorts of claims on each other’s property. But even if you both are clear and adamant that each should keep his /her own assets you need a simple contact in which your waiver of these claims is clearly stated in writing and signed before a notary public. It will also help if the contract states that you are each aware of your claims to the other’s property and that you are knowingly waiving your claims. While you are at it a mutual waiver of alimony will preempt a subsequent claim if one of you gets laid off or a business collapses.

A written separation agreement is necessary if there are any economic issues or any potential economic issues. And if your situation is more complex than Pam and Tom then you certainly need a separation agreement and it is very unlikely that you know enough about divorce to do it yourselves.

This does not mean that you are doomed to the greedy clutches of adversary lawyers eager to make a fight. There are plenty of mediators around who can help you through at minimal cost and there are some decent lawyers who minimize conflict and help you make practical choices. You can obtain the actual divorce yourself but you take a terrible risk when you do it without a professionally assisted separation agreement.

Call me anytime you have any questions about North Carolina divorce law, custody issues, or separation and settlement agreements.  You are under no obligation and it would be my pleasure to answer your questions.

 

Sam Margulies
(336) 669-3141

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Divorce Doesn’t Have to Mean Going Broke

How mediation saves a great deal of money

A mediated divorce saves clients many thousands of dollars. In a typical adversarial divorce using lawyers you can expect to pay each lawyer an initial retainer of from $1500 to upwards of $10,000 just to begin the case. Even though almost all divorces are settled by negotiation before trial, most attorneys approach every case as if it was going to have to be tried. If it settles before trial, fine. If not they keep preparing for trial, a process that can cost tens of thousands of dollars. So you pay to prepare for a trial that is not going to happen in close to 99% of divorces.

Today, the average conventional divorce, using an attorney for each spouse, costs roughly twenty thousand dollars.

When you choose mediation there is no retainer to pay. I charge $250 per hour paid as you go. The average mediation is resolved in less than eight hours of work. Most cases cost less than $2000 to complete the mediation. And if you consult with an advisory lawyer, you pay for each consultation instead of paying a retainer. Then, you pay the lawyer to prepare the final separation document and put the divorce through the court. The fees for both parties for this phase are generally less than $1500. So in the typical divorce the total professional fees for the entire process are generally about $3000, less than most couples pay for the initial retainer fees. That is why mediated divorce usually saves couples from $17,000 and up.

There is an important second reason that mediation can save you a lot of money. We know that about half of lawyer mediated settlements break down within two years requiring a return to court to fight about children and money. Each time this happens can cost thousands of dollars for each party. And this does not include the emotional toll this post divorce conflict take on you and your children. The reason so many of these lawyer negotiated settlements break down is that they are not real agreements between the couple but rather grudging concessions worked out by the lawyers. The result is that the level of true commitment to the agreement by the parties is low. And a low level of commitment results in a high level of willingness to breach the contract.

Mediation requires the parties to negotiate directly with each other until agreement is reached. A good mediator keeps you working until you are both satisfied that the agreement is fair. The result is a much higher level of commitment to the terms of your settlement and a greater willingness to abide by the terms. We know that less than five percent of couples who mediate their settlements return to court within two years. Compare this to the fifty percent of couples whose divorces are negotiated.

Call me anytime you have any questions about North Carolina divorce law, custody issues, or separation and settlement agreements.  You are under no obligation and it would be my pleasure to answer your questions.

Sam Margulies
(336) 669-3141

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