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When a husband and wife separate, there are a number of potential claims, most commonly they are:
- Custody of the children;
- Financial support of the children;
- Equitable distribution, which essentially means the distribution of the marital property and debts;
- Spousal support referred to as postseparation support and alimony; and
- Absolute Divorce
Have a question? See our Family Law Frequently Asked Questions!
These claims are resolved either by reaching an agreement between the parties or through the court system, which is often referred to as litigation.
Agreements between the parties can occur in many ways, both before and after filing a lawsuit, including:
- Agreements made directly between the parties;
- Agreements resulting from the negotiation between the attorneys; and
- Agreements resulting from mediation with a neutral third party
Cases resolved by agreement of the parties rather than by the court are often less financially and emotionally devastating. However, it is important that financial goals are not sacrificed for the sake of reaching an agreement. This often happens in the case of someone just “wanting the case to be over.” Do not enter into an agreement that you may regret in 6 months to a year because, more often than not, there is no remedy available to you to change the agreement. In addition, some issues require a court or arbitrator to make a decision due to legitimate differences of opinion by both parties that makes an agreement impossible. All claims can be resolved by agreement, except for a claim for absolute divorce, which requires a lawsuit to be filed and a judgment to be entered by the court.
¹The Overview is not intended to be a comprehensive discussion of the law about separation and divorce nor is it intended to list all the information and documents that may be relevant to your case. This overview is a summary of legal principles that may apply to typical family law cases. Before making any decisions about your case, you should discuss your situation in detail with an attorney.
²For eases of reference, the term “your spouse” is used to refer to your husband or wife even if you are divorced. In child support or child custody cases where you are not married, the term refers to the person who is the other parent of the child who is the subject of the claim.
More Information about Case Resolution Alternatives
Mediation is a process in which the parties (typically including their attorneys) meet with a neutral third party who attempts to facilitate a negotiated settlement. This process has a very high success rate in terms of reaching a settlement in the case. If a settlement is not reached, the case proceeds through the court system if it is pending in court or a lawsuit is filed if it is not yet pending in the court system. If you engage in mediation, you are NOT required to settle your case. While each party will likely have to adjust their positions to reach a mutually agreeable resolution, you should never feel you have to settle your case. It is your attorney’s job to discuss the pros and cons of your position and what will likely happen in the courtroom. It is with that information that you can make an educated decision as to whether or not you should agree to settle your case.
The court system in almost all counties in North Carolina require that parties mediate child custody cases through a free mediation program provided by the court system. This process is different in that the attorneys are not present during mediation; however, any agreement that is reached is put in writing by the mediator (referred to as the “parenting agreement”) and sent to all parties and their counsel. From there, each party has the opportunity to consult with their attorney and request additions or changes as necessary. Be sure to contact your attorney as soon as possible as there is limited time to review the drafted agreement. Once all parties and their attorneys are in agreement as to the terms of the parenting agreement and it is signed by the parties, it is adopted by the court and becomes a court order. If problems arise in the future with regard to the parenting agreement it is now enforceable by the court as a court order. Note that nothing that occurs or is said at mediation (whether part of the child custody program or otherwise) will be admissible in trial should an agreement not be reached.
Litigation is a term often used when you are “going to court” to have a judge resolve your issues. As part of this process, documents such as pleadings and motions, are filed with the court. If you are in Wake County, there are certain requirements that must be complied with as part of the family court system (filing financial affidavits and financial disclosures for example), and eventually you appear in front of a judge for a hearing or trial in your case. Jury trials are rarely an option in family law cases. More often than not, a judge makes the decision in your case. In most counties, one judge will follow your case until it reaches final resolution. When you are pursuing multiple claims in a case, each claim may be heard at different times depending on the nature of the case. For example, if you file a claim for child support (temporary and permanent), child custody (temporary and permanent), postseparation support, equitable distribution and alimony, you would likely have the case heard in the following manner: a temporary hearing on child custody and child support, a temporary hearing on post separation support, a trial on equitable distribution and then a trial on alimony. In the meantime, of course, motions may be filed that may be heard in between these claims. You also have the option of settling some claims by agreement and having the judge decide the other disputed claims should this become an option in your case.
Another method of case resolution is arbitration, which is similar to litigation in that a neutral third party makes the decision. It is similar to mediation in that the parties may elect who the decision maker is, when and where to have the arbitration and what rules will govern the arbitration (sometimes the rules of evidence are modified for arbitration purposes for example). The process is often faster than the case going through the court system channels and you have the certainty of when your case will be addressed. Because you have to pay the arbitrator; however, the process can be more costly than proceeding through the court system depending on the nature of the case. Arbitration decisions can be binding, where the parties agree that the decision is final and has the same effect of a decision made by a judge. Decisions may also be nonbinding, where the decision functions as an “advisory opinion” that the parties can either choose to follow or take their chances in court.
How long does it take to resolve a claim?
Resolutions can be reached before the parties separate or after a year or more in litigation; it depends on the circumstances of the case. Some of the factors that can impact the life of a case are the need for appraisals and evaluations and the amount of cases that must be heard by the judge in your case. One of the many downsides to litigation in court is that, although the parties have some control over the amount of time, more often than not factors beyond the control of the parties can delay their case being heard.
What documents are required to resolve a case?
If your decision is one that was decided by a judge, the judge will enter and Order or Judgment. If the case is decided by mutual agreement of the parties, the case may either be resolved by a contract, such as by signing a Separation Agreement and Property Settlement, or by entering into a Consent Order or Consent Judgment. A Consent Order and Judgment is signed by the parties, entered by the presiding judge and then becomes an order of the court.
Which is better; a contract or a consent order/judgment?
It depends on your goals in reaching the settlement. For example, if you have concerns that the other party may not comply with the terms of the agreement, you may prefer a court order so that the agreement may be enforced by the contempt powers of the court. If you would prefer that the decision be non-modifiable, which is usually the case for spousal support, a contract is the better approach as a court order can be modified under certain conditions. Many people can resolve certain claims by consent order, such as child custody, and other claims by private contract, such as in the case of spousal support.
How “permanent” is my resolution?
It depends on the nature of the claim. For example, claims for child custody or child support are never really “permanent” as the courts always have jurisdiction to ensure the best interests of the children in our state. A change of circumstances affecting the child is required to have the court modify an existing child custody or support order. Equitable Distribution resolutions are more often than not permanent resolutions whether decided by court order or by agreement. The permanency of an alimony claim depends on whether it is decided by court order or by agreement. Alimony Orders are modifiable based on a change of circumstances where Alimony Contracts are not modifiable unless such is specifically built into the agreement. These considerations are very important to discuss with your attorney so that your case may be resolved in the best way to address your specific concerns.
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