Your heart threatens to pound right out of your chest. Your palms are sweating, and you’re looking for an escape route in case things get ugly. Is it food poisoning, or are you about to walk into parent-teacher conferences and sit at a table to discuss your child’s progress with your ex beside you?

Whether your custody agreement designates you or your ex as the primary caregiver, you’re both in this together, so don’t map the emergency exits just yet. If you’re prepared, you can navigate parent-teacher conferences with your ex—and you can stay calm, cool and collected, even if you two don’t get along.

What Your Raleigh Divorce Lawyer Might Say
Your Raleigh divorce lawyer will want you to keep the peace; it’s always better in the long run. Since you and your ex share a child, you also share the responsibility of making sure he or she grows up with firm educational support. That means letting go of your resentment, anger and hurt in order to best provide for your child.

Different Strokes for Different Folks
What works for one couple doesn’t always work for another. However, there are a few things that will make navigating conferences with your ex by your side a little easier, including:

• Making sure the teacher knows you are divorced and asking for two copies of report cards and other important documents
• Agreeing to keep disagreements out of the classroom (talking about the conference later is usually a good idea anyway)
• Ensuring there aren’t any secrets you’re keeping from your ex, such as plans to move, that might come out during a parent-teacher conference
• Avoid fighting with each other before, during or after the conference when your child is within earshot

When All Else Fails…
Talk to your Raleigh divorce lawyer to see if it’s acceptable to schedule separate parent-teacher conferences if you’re sure you and your ex can’t co-parent in your child’s classroom. There are always extenuating circumstances that excuse you from having to face your ex, such as a history of domestic violence, and there is no law that says you must both attend your kids’ events together.

So you had a whirlwind romance that blossomed quickly into full-blown love… but the honeymoon is over, and you’re considering scheduling an appointment with a Durham divorce lawyer.

It’s tough to determine how to divide property, figure out spousal support and create a fair child custody agreement in any divorce; a divorce after a short-term marriage is no different. Your attorney will get to know you and get a clear picture of the aspects that make your case unique in order to make sure your rights are protected under North Carolina law.

Short-Term Marriage and Divorce: Not So Uncommon
It happens more often than you might think: some celebrities, like Britney Spears, only stay married for a matter of hours (she filed for divorce after 55 hours of marriage); others, like Nicolas Cage, wait 107 days before starting the process.

These infamous short-term marriages aside, you probably know a handful of people who divorced after a few months—although they may not make it public knowledge. According to the US Census Bureau, 11.5 percent of marriages that took place from 1995 to 1999 never made it to their fifth anniversary, and it’s safe to assume those numbers have risen in recent years.

The Emotional Aftermath of a “Short” Marriage
Whether you were married a month, a year or more, divorce hurts. Compound that with insensitive family and friends who might disapprove or say, “I told you so,” and you’re caught in a tough spot. Your Durham divorce lawyer might recommend that you talk to a counselor or therapist so you have an outlet for your frustrations and so you can begin to pick up the pieces and start over.

Special Considerations for Short-Term Marriages
People in short-term marriages generally have less time to accumulate joint property, have children or contribute large amounts of money into joint accounts. However, your lawyer will need to know all the details, including when and why you got married in order to give you accurate legal advice. He or she will ask about your income, your soon-to-be ex’s income and your employment status, too. You’ll also need to make a list of the property you had going into the marriage and what you expect to take going out.

Many people get excessively anxious about divorcing after a short-term marriage. Remember, your Durham divorce lawyer is there to protect your rights under North Carolina law; as long as you provide accurate and truthful information, your attorney can help you through the process so you can rebuild your life.

“A mom or a dad who doesn’t have custody can literally tuck children into bed at night, and read a story one-on-one over the Internet. It changes everything in terms of the possibilities for for relationships.”

- Lee Rosen

WHAT IS ‘VIRTUAL VISITATION’?

“Virtual visitation,” also called Internet visitation or computer visitation, is a way for parents to have “face time” with their children via electronic means. The various methods that parents can use for virtual visitation are personal video conference, web-cam, and video phone. Think Jane Jetson talking to Elroy. The intent is to enhance and supplement other communication time (face to face and telephone) between parents and children.

Other methods of electronic communication that some consider virtual visitation include e-mail, chatting in a private chat room, instant messaging, and interactive game playing by a parent and child from remote computers, but these methods do not provide the critical “face to face” communication that advocates of virtual visitation champion.

Although the focus of most reported cases of virtual visitation has been divorced, non-custodial parents communicating with their children, this is certainly not the only application. Any parent who is away from a child traveling on business or vacation, in the military, or in a correctional facility, can and should take advantage of this new technology. Grandparents and other relatives can also use virtual visitation to share time with their loved ones.

Virtual visitation is not and should not be regarded as a replacement or substitute for personal contact between a parent and child, however. Its availability should never be justification for the relocation of the custodial parent. It is merely a factor the court can consider when determining how the parent-child relationship will be affected by custodial parent relocation.

LEGISLATION

Utah was the first state to codify the concept of virtual visitation. It defines “virtual parent-time” as “parent-time facilitated by tools such as telephone, email, instant messaging, video conferencing, and other wired or wireless technologies over the Internet or other communication media to supplement in-person visits between a non-custodial parent and a child or between a child and the custodial parent when the child is staying with the non-custodial parent. Virtual parent-time is designed to supplement, not replace, in-person parent-time.” In addition, “each parent shall permit and encourage, during reasonable hours, reasonable and uncensored communications with the child, in the form of mail privileges and virtual parent-time if the equipment is reasonably available, provided that if the parties cannot agree on whether the equipment is reasonably available, the court shall decide whether the equipment for virtual parent-time is reasonably available, taking into consideration.”

Wisconsin followed with its own legislation in 2006. “Electronic communication” is defined as “time during which a parent and his or her child communicate by using communication tools such as the telephone, electronic mail, instant messaging, video conferencing or other wired or wireless technologies via the Internet, or another medium of communication.” The statute goes on to consider the availability of electronic communication as a factor in determining custody and parenting time. On the other hand, the relocation statute specifically states that the court may not use the availability of electronic communication to support the modification of a physical placement order
or the refusal to prohibit a move.

Missouri passed a virtual visitation bill, but the 2006 session ended before Governor Matt Blunt signed it. It will have to be affirmed in the 2007 General Session.

In 2009 North Carolina modified its child custody statute to include virtual visitation. The North Carolina statute provides as follows:

“An order for custody of a minor child may provide for visitation rights by electronic communication. In granting visitation by electronic communication, the court shall consider the following:
(1) Whether electronic communication is in the best interest of the minor child.
(2) Whether equipment to communicate by electronic means is available, accessible, and affordable to the parents of the minor child.
(3) Any other factor the court deems appropriate in determining whether to grant visitation by electronic communication.

The court may set guidelines for electronic communication, including the hours in which the communication may be made, the allocation of costs between the parents in implementing electronic communication with the child, and the furnishing of access information between parents necessary to facilitate electronic communication. Electronic communication with a minor child may be used to supplement visitation with the child. Electronic communication may not be used as a replacement or substitution for custody or visitation. The amount of time electronic communication is used shall not be a factor in calculating child support or be used to justify or support relocation by the custodial parent out of the immediate area or the State. Electronic communication between the minor child and the parent may be subject to supervision as ordered by the court. As used in this subsection, “electronic communication” means contact, other than face‑to‑face contact, facilitated by electronic means, such as by telephone, electronic mail, instant messaging, video teleconferencing, wired or wireless technologies by Internet, or other medium of communication.”

CASES

The case that threw virtual visitation into the spotlight was McCoy v. McCoy in 2001. In that case, the mother petitioned the court to allow her to relocate. She worked as a freelance website designer, and she wanted to move to California to accept a permanent job with health benefits. She proposed a visitation schedule that would give the father the same number of total days with the child, but would group those days around the child’s
school vacation schedule. She also proposed setting up a website with streaming video that would allow the father and the child to see each other in real time over the Internet. The father opposed the move, arguing that it was not in the child’s best interests and that it would damage his relationship with his child.

The appellate court disagreed and allowed the mother to relocate. The court first noted that whenever a custodial parent moves to a distant location, the ability of the non-custodial parent to exercise visitation is adversely affected. That fact alone, however, may not be contrary to the best interests of the child if an alternate visitation schedule continues and preserves the relationship between the child and the non-custodial parent. The court found the suggested use of the Internet innovative and admirable: “We believe that the mother’s suggested use of the Internet to enhance visitation was both creative and innovative. In dismissing that suggested use, the trial court never focused on the actual alternative visitation schedule proposed by the mother and whether it was comparable to the father’s current schedule or inimical to the best interest of the child.” A key factor in the McCoy case was that the non-custodial father would have the same or a greater number of total days with the child. The Internet, in this case, would actually supplement that visitation.

A few decisions before McCoy had hinted at the same principle, for example In re Marriage of Thielges in Iowa, In re S.M. in Missouri, Lazarevic v. Fojelquist in New York.

The decision in McCoy was relied upon in two Connecticut trial court cases granting relocation. In Arriaga v. Gambardella (2002), the court ordered: “The parties shall immediately explore the use of the internet for virtual visitation or online conferencing. Each party will be responsible for its own expenses in purchasing a computer and
related hardware and software and obtaining and maintaining internet access. This court will retain jurisdiction over any motions or proceedings addressed to implementing this paragraph.” The court also relied on McCoy in Armstrong v. Armstrong (2002).

In Hernandez-Mora v. Jex, (2001), a case in federal court in Colorado, the parents settled the case by having the child and father live in Spain, while the mother remained in
the U.S. The agreement spelled out that the father:

• would provide an appropriate computer and service plan for the mother before the child and father remove themselves to Spain
• would pay for necessary service upgrades
• would pay for a DSL line or greater quality bandwidth service for the mother for two years
• create and maintain a website for the child with the child’s schedules, activities, pictures and information
• ensure that the mother’s privacy is protected.

A 2002 case in Massachusetts, Cleri v. Cleri, also shone the spotlight on virtual visitation and generated much publicity. The trial judge awarded the ex-wife custody of her three small children and gave her permission to move the children to Long Island, New York. The trial judge granted two weekend visits a month to the ex-husband. The ex-husband would also have virtual visitation on Tuesdays and Thursdays from 6 to 7 p.m. The judge
ruled that the computer conferences are relatively cheap and would allow the ex-husband to read to his children and help them with their homework. This case became a rallying point for those opposed to virtual visitation. They argued that the judge was substituting virtual time for real time, to the detriment of the father.

DRAFTING AN AGREEMENT

Internet visitation agreements can be general or very detailed, depending on the issues addressed. At the least, the agreement should state that the custodial parent will ensure that any information transmitted between the non-custodial parent and the child remains private between the non-custodial parent and child. Parties should also agree that they will not use the child to communicate any issues related to the divorce, and the agreement should punish non-compliance, with the remedies or sanctions clearly spelled out. For example: If the agreed-upon electronic communications are not in place for a certain period of time, then the caretaker parent of the child will send the child for an extra weekend at his or her expense to visit with the parent remaining behind.

The agreement should specify who pays for the necessary technology, including computer, computer access to the Internet, web camera, e-mail, and necessary software. In addition, the agreement should specify the required level of quality of the Internet access. A DSL line or greater quality bandwidth should be required.

The language used in Hernandez-Mora v. Jex (2001) specifies that “[e]ach party may make reasonable telephone, e-mail, or videoconferencing contact with the child while the child is at the home of the other party, during reasonable hours,” so long as it is not disruptive to the child’s schedule. The father was also to provide an appropriate computer and service plan to be delivered to the mother’s residence, and he was to be completely
responsible for computer costs, including monthly DSL and Internet service for two years.

The 2001 Supplement to Jeff Atkinson, Modern Child Custody Practice (2d ed. 2000), § 5.34A provides the following form for Internet visitation: Each parent shall allow the other parent reasonable contact with the child by use of the Internet. Reasonable contact shall include sending and receiving e-mails, sending and receiving “instant messages,” and sending and receiving photographs.

The following may also be used: (A) By not later than December 1, 2000, former wife shall purchase or lease a separate, state of the art computer system together with appropriate computer furniture for Child’s sole and exclusive use in her bedroom, which will feature video-conferencing equipment and software, including a video camera with audio capabilities, for Child to privately contact her father via internet and e-mail systems.

(B) By not later than December 1, 2000, former husband shall purchase or lease a separate, state of the art computer system together with appropriate computer furniture for Child’s sole and exclusive use in her bedroom in Florida, which will feature videoconferencing equipment and software, including a video camera with audio capabilities, for Child to privately contact her mother via internet and email
systems. Father shall also obtain and pay for internet access service for the child which can be utilized by the child at either residence.

PROS AND CONS

Of course, not everyone favors virtual visitation. Many express concern that instead of supplementing in person contact, it will be used to limit in person contact. “You can’t hug a child through a computer” is a common refrain. Others worry that virtual visitation may be used as support for a custodial parent’s relocation.

Supporters of virtual visitation point out that the Utah and Wisconsin legislation specifically provide that virtual visitation is in addition to, not instead of, personal
contact. Legislation is needed, they say, to make judges aware of their options. Judges tend not to be aware of technological advances that can aid parties.

Regardless of whether one supports or opposes virtual visitation, the fact is that virtual visitation is a fact, and attorneys, psychologists, and others involved in family law should be aware of its uses and abuses.

HELPFUL WEBSITES

www.internetvisitation.org/
www.distanceparent.org/
www.virtualfamiliesandfriends.com/
www.virtualfamiliesandfriends.com/
www.peoples-law.org/family/divorce/Custody/virtual/6_ways.htm
www.ncsconline.org/WC/Publications/KIS_SciJud_Trends03.pdf

“Mom can’t pick you up tonight; she had to work late.”

“Dad’s not going to make it; something came up.”

During your divorce, your kids will probably have to hear these words a time or two. However, if you constantly find yourself explaining to your kids that their parent won’t be showing up for scheduled visitation, you’ll need to let your Charlotte divorce lawyer know that you’ve got a problem with your ex.

The Consequences of Missed Visits
We’re all only human, so it’s normal to expect the occasional snag in visitation plans. Flat tires, an angry boss or a family emergency can prevent a parent from showing up when they’re supposed to… but some single parents are forced to deal with the aftermath of missed visits far more often than they should.

When a parent misses visitation time with kids on a regular basis, it sends a signal that some things are more important than they are. They might feel unloved, unworthy or rejected. This can result in a loss of self-esteem and lead to aggressive behavior, depression and anxiety. Remember, you cannot withhold parenting time from your ex, either, even if he or she hasn’t paid child support or you have made other plans.

What Your Charlotte Divorce Lawyer Might Suggest
The most important thing is your kids’ mental health. Your Charlotte divorce lawyer might suggest that you take them to talk to a counselor or therapist who has experience working with children so they can cope with the feelings they’re having.

You and your lawyer might decide to reexamine your child custody agreement to determine whether it’s too difficult for your ex to commit to. While your attorney can’t force your ex to visit your kids, he or she can make legal adjustments that make your life—and planning your days—a lot easier.

How to Explain an Absentee Parent to Your Kids
Age-appropriate explanations can help your kids understand that despite their parent’s absence, they’re still very loved and worthwhile. No matter how old your kids are (even if they’re teens), avoid bad-mouthing your ex; you could inadvertently cause them more emotional trauma.

Don’t make excuses for your ex in an attempt to soften the blow for your kids. Instead, tell them that their parent’s no-show has nothing to do with their worth. If possible, have back-up activities planned that can distract your kids from the disappointment they’re experiencing.

People leaving relationships with drug addicts often struggle with guilt, resentment and anger. What if leaving isn’t the right thing? I can’t believe I allowed this to go on for so long. How could he do this to me?

Divorcing a drug addict creates a set of unique circumstances that your Chapel Hill divorce lawyer can help you sort through. Your ex’s addiction might affect your child custody agreement, the amount of spousal support that’s exchanged and even the division of your marital property.

You’re Not Alone
The 2010 National Survey on Drug Use and Health estimates that almost 9 percent of the US population over the age of 12 uses illicit drugs, including prescription drugs that are used recreationally. From narcotic pain relievers to cocaine and heroin, more than 23 million people needed treatment for addiction; only 2.6 million got it, according to the survey.

What do these figures mean for you? Your Chapel Hill divorce lawyer has probably dealt with many people in situations like yours, so you can trust that he or she knows how to handle the ups and downs of your case while protecting your rights under North Carolina law.

Talking to a Third Party
Your attorney might suggest that you work with a counselor or therapist who can help you cope with the feelings you’re facing. Drug addiction affects everyone around the user—spouses, kids, parents and siblings, as well as friends. You have a lot to deal with when you choose to divorce a drug addict, so sometimes it helps to have someone keep you focused on the big picture.

What Your Chapel Hill Divorce Lawyer Needs to Know
Although it’s painful to discuss, your lawyer needs to know as much as possible. He or she might ask about the types of substances your soon-to-be ex is abusing, how long the problem has existed and whether your ex will admit there’s a problem. Your lawyer will probably also ask:

• Has your spouse received treatment before?
• How has your life been affected by your spouse’s addiction?
• Is your divorce a direct result of the addiction?

Since every case is unique, it’s best to provide your attorney with as much information as possible. That way, he or she can help you by offering customized advice based on your situation.

When to Call Your Lawyer
If your spouse threatens you or has made you a victim of domestic violence, get to a safe place and call the police right away; call your lawyer as soon as you’re safe.

Any time your spouse’s addiction affects you or your kids, you’ll need to bring your Chapel Hill divorce lawyer into the loop. The more information your attorney has, the better he or she can protect you and reach the best possible outcome for your case.

Marriages go through ups and downs; that’s part of their natural life cycle. But sometimes, marriage takes a turn you’re not ready for. Many women come to a point where they’re forced to say, “I don’t know my husband anymore.”

If that’s the way you feel, is there any way to fix it, or should you head straight for a Durham divorce lawyer’s office?

Exploring Your Options
When you hear yourself saying “I don’t know my husband,” it can be scary. You have two choices: remedy the situation or sit down with a Durham divorce lawyer and file paperwork to end your marriage. While it seems black-and-white, there’s a lot of gray area that makes your situation unique.

Try sitting down with your husband and expressing your feelings in a non-accusatory way. See if he’s willing to work on your marriage; suggest couples counseling as a way to reconnect. If your husband isn’t willing to put in the work, you probably need to consult an attorney.

Talking to a Durham Divorce Lawyer
Visiting a divorce lawyer doesn’t mean you’re committed to getting a divorce. It’s simply another option to explore in case you and your husband can’t reconnect.

When you talk to a Durham divorce lawyer, he or she will ask for a general overview of your situation. Provide all the necessary information, because it will help your lawyer understand whether you’ll need to work on child custody, whether you’ll be entitled to spousal support (alimony) and how much property you need to divide if you choose to divorce.

Considering Possible Outcomes
Once you know what your options are, you can weigh the pros and cons. You may decide that you don’t want to get to know your husband again, and that’s okay. Sometimes there’s too much hurt, resentment and built-up anger to make reconciliation possible; in cases like that, many women would prefer to start over. Some women decide to focus their effort on one last attempt at reconnecting, while others continue to entertain the idea of divorce for weeks, months or even years before making a decision.

The Final Decision is Yours
No one can tell you what’s right for you. While a Durham divorce lawyer can give you guidance and make suggestions based on your circumstances, the final decision is yours alone. Have confidence in your ability to make sound and reasonable judgments—you can, and will, make the right choice.

Any Raleigh divorce lawyer can tell you that you’ll need to rely on a strong support network during your divorce; in fact, people who have support are often happier and healthier. However, there’s a fine line between relying on your friends and family and forcing them to experience your divorce with you.

When Friends Hit the Road
Many people report losing friends during their divorces. Whether they were friends you and your ex shared, fair-weather friends or they’re afraid that divorce is contagious, it hurts just the same. When it comes to true friends, they’ll stick around—but you can help ensure you’re not pushing them away by dragging unwilling participants through your divorce.

Venting, Validation and “Friend Burnout”
It’s almost always helpful to vent about important aspects of your case, such as child support, custody and alimony, but not everyone will be open to listening. While you do deserve attention and validation during your divorce, your friends and family have their own lives, their own problems and their own successes.

Remember to ask your friends how they’re doing, too; not every conversation has to be about your divorce. No friendship can survive when it’s completely one-sided, and you can often ward off “friend burnout” by being considerate despite your pain.

My Friends Deserted Me during Divorce—Why?
If your friends do bail out, don’t take it personally. Sometimes it’s unavoidable. Your friends may feel like you’re not the same person you were, that you’re consumed by your divorce or that they just don’t want to get involved in something so emotionally intense.

Most friends you shared with your ex will choose a side, even if they don’t mean to. It might not be yours, and you might come up one or two friends short when it comes to the final tally. Unfortunately, some people view a newly-divorced person as a threat to their own marriages (although generally, that couldn’t be farther from the truth).

Using Your Friends as Supporters
By all means, rely on your friends when you need to. You might also consider asking your Raleigh divorce lawyer for a referral to a local counselor or therapist who can serve as your sounding board. That way, you can let go of some of your anger, hurt and frustration and be free to enjoy time with your friends instead of letting your divorce take over those relationships.

During a divorce, arguments can heat up quickly. In fact, they can heat up so quickly that one party is often blindsided and doesn’t have time to think things through or realize what’s happening—but that’s the worst possible time to make a snap decision. If your wife tries to throw you out of the house, whether or not you’re in the middle of an argument, there are a few things you need to know.

Call Your Chapel Hill Divorce Lawyer Immediately
Don’t wait until you’ve packed an overnight bag and headed to a local hotel. Call your lawyer before you move a muscle. He or she will be able to give you on-the-spot advice that will help protect your rights under North Carolina law.

The only exception: if your wife becomes violent, call the police and get to a safe place (and bring your children, if you have them). Domestic violence is a serious crime, and you do not deserve to become a victim. Once you’ve notified the authorities, call your Chapel Hill divorce lawyer to determine your next step.

Can My Wife Kick Me Out?
Only your attorney can provide you with legal advice, so it’s a good idea to ask whether or not your wife can throw you out of your own house before it becomes an issue. In most cases, your wife telling you to leave doesn’t mean that you have to—or that you should, for that matter.

What if My Wife Tells me to Leave the House?
If your wife orders you out of the house, your Chapel Hill divorce lawyer may advise you to try to diffuse the situation. As with most disagreements during divorce, the best thing to do is to stay calm; don’t fan the flames by becoming visibly angry, shaken or upset.

Try standard conflict resolution techniques to calm her down and buy yourself some time before things spiral out of control. Many people effectively deal with heated arguments by:

• Listening. Don’t try to interject or defend yourself until your wife has had her say.
• Finding out if there’s a better solution for her. Ask your wife if she can help you come up with another idea that will benefit her more; you might suggest—nicely—that working together to resolve this issue will work in her favor in the long run.
• Walking away. If your wife will not calm down and become rational, walk away from the argument and ask if you can discuss it when you’re both thinking clearly.

Don’t Leave Your Chapel Hill Divorce Lawyer out in the Cold
When your wife tries to throw you out, even if you’ve diffused the situation and moved on, you need to tell your lawyer. You don’t have to make a 3 a.m. phone call if you’re out of the woods, but do it as soon as possible. That way, he or she can arm you with the knowledge you need if it happens again.

Any Charlotte divorce lawyer would be glad to have a nickel for every time they heard, “It’s all his fault” or “She did it!” While it’s normal to assign blame during a divorce, and you should always tell your lawyer who’s at fault for every issue, you shouldn’t blame your spouse to his or her face. In fact, doing so might actually harm your case.

What’s the Harm in Blaming Your Spouse?
When you accuse someone of committing a heinous act, whether it was leaving filthy socks on the floor for a decade or slowly siphoning all the money from your bank account, they immediately become defensive. You would, too, and it’s a natural reaction. However, you don’t want your soon-to-be ex playing defense. It almost always causes unnecessary stress and can drag out your case by shifting the focus from big issues to every little thing that ever came up during your marriage.

While the ideal solution is to come to a divorce settlement that makes everyone happy, that goes out the window when conflict takes over. Your spouse might be unwilling to work with you, even on minor issues, because they’ve become focused on “winning.”

How to Avoid Playing the Blame Game
First things first. When you’re talking to your Charlotte divorce lawyer, the Blame Game doesn’t exist. Make sure you disclose everything your spouse has done and assign the blame where it’s due so he or she can help you successfully navigate the divorce process.

During negotiations with your spouse, whether you’re in mediation or you’re having a discussion on your own, avoid finger-pointing at all costs. If you feel your emotions boiling and you’re ready to shout, “Well, if you didn’t (insert injustice here), we wouldn’t be going through this now,” take a step back and let your ex finish his or her thoughts. That buys you time to calm down and allows your ex to feel that his or her concerns are valid.

If you’re being reasonable by listening and not assigning blame, your ex won’t put up defenses that block you from reaching a fair settlement. Your lawyer and mediator will help you get there, but you have to do your part, too.

What is a separation agreement?

A separation agreement is a contract between a husband and wife that states the terms under which they will live apart.   In North Carolina, if the agreement deals with property issues the full legal name of such a document is a “Separation Agreement and Property Settlement.”  You can see a sample here.

The agreement can govern issues such as spousal and child support, child custody, and the division of the couple’s property.

A separation agreement can resolve all of the legal issues that would otherwise be decided by a judge.  The only thing a separation agreement can’t do is grant the actual divorce.

In most other states, a judge must at least approve a separation agreement at the time the divorce is granted.  Not so in North Carolina.  With the exceptions noted below in the discussion of defenses, the parties are free to arrange things as they see fit.

Does a separation agreement need to be notarized?

Yes.

To be valid in North Carolina, a separation agreement must be notarized.

Why should a couple negotiate a separation agreement, rather than leave things to the judge?

Negotiating a separation agreement has many advantages over adversarial litigation, in which lawyers argue over the issues in court and a judge makes the final decision.

In almost all cases, negotiating an agreement is faster, cheaper, more private, and less stressful than litigation, and the results are usually better for both parties.  That’s why the great majority of married couples in North Carolina come to an agreement without the need for a judge’s intervention.

One reason that results are better is that couples understand their own needs (and those of their children) better than any judge can.  Another reason is that, while courts often impose “one size fits all” solutions that have worked before, couples can be more creative and flexible about working things out.

Do you need to have an attorney negotiate and draft your separation agreement?

It’s not required to have an attorney involved in negotiating or drafting a separation agreement, but it’s a very good idea.  And it’s an especially good idea when your spouse has an attorney involved.

Click here to learn more about why you should have the help of an experienced family law attorney when you’re creating a separation agreement.

Do you need to have a separation agreement in order to be legally separated?

No.

Separation occurs on the day that a husband and wife move into separate homes with the intent to live apart permanently. A separation agreement can be negotiated either before or during the period of separation.

How soon after separation can couples get divorced?

A divorce can be granted after a year and a day following the date a couple separates. 

How is a separation agreement related to a divorce decree?

A separation agreement can later become part of a divorce decree, or it can stay completely separate.  Both parties must agree to bring the separation agreement to the court; if they don’t, then it remains only a contract.

As noted above, in North Carolina there’s no requirement for a judge to approve a separation agreement.  However, if the parties submit the agreement to the court, then the concept of “merger” applies.

In this context, “merger” means that the agreement becomes part of the court order.  That means that the agreement is no longer treated like (and enforced like) a contract.  Instead, the terms are enforced like a court order.

There can also be a “partial merger,” where the agreement is like a contact in some ways and like a court order in other ways.

Unless the separation agreement says otherwise, the actual granting of the divorce won’t have any effect on the separation agreement.  The agreement will still apply after the parties are no longer legally married.

What happens if a party violates a separation agreement?

If a party violates the separation agreement, then the other party can seek to enforce it, by bringing a lawsuit.

How this happens is discussed in detail below.

How are separation agreements enforced?

How a separation agreement is enforced depends on whether the agreement is “just” a contract or whether it’s become part of a court order.

A separation agreement that isn’t part of a court order is just a contract, like any other contract.  The parties can enforce it in the same ways that other contracts are enforced.

For example, a party (the plaintiff) can sue for breach of contract and seek money damages.  The court can enforce an award of money damages by imposing a levy on the property of the other party (the defendant).  The court can even order the defendant’s property sold to pay the damages.

If one party breaches, the plaintiff can also sue for “specific performance” – a court order for the defendant to do what the separation agreement requires (such as make support payments).  Specific performance can be ordered even before trial, to preserve the status quo (i.e., keep things the way they are).

If one party sues to enforce the separation agreement, the court may order the parties to attend settlement conferences or engage in settlement negotiations.  If a party refuses to attend such settlement meetings, the court can impose monetary sanctions (fines) on that party.

If the separation agreement bars support and alimony and the party relieved of alimony payments commits a material breach of the agreement, the plaintiff can “rescind” the separation agreement and seek support or alimony.

What damages can a party recover when suing for breach of a separation agreement?

In awarding damages, the court’s goal is to put the plaintiff in the same position she or he would have been in if the defendant hadn’t breached the contract.

If the breach involves failure to make periodic payments (for example, child or spousal support payments), the plaintiff can get a judgment for all of the overdue payments, plus interest running from the date each payment was due.

More types of damages are discussed below.

Can a party recover for emotional damages?

In most cases, a party can’t recover for emotional damages or mental anguish caused by a breach of contract.

The North Carolina Supreme Court has held that a plaintiff must prove three things in order to recover damages to compensate for mental suffering due to breach of contract:

• The contract was not concerned with trade and commerce;
• The contract was not primarily for pecuniary (financial) benefit;
• The contract related to issues of dignity and emotions, so that there would be a great probability of mental anguish in the case of breach.

Most separation agreements don’t satisfy the second and third elements.

However, damages for emotional injury might be available when a defendant has breached a non-molestation clause in a separation agreement, for example.

A non-molestation clause is a provision in which the parties agree to “leave each other alone” – to not interfere with each other’s lives.

What kinds of actions violate a non-molestation clause depend on how the clause is written.  Some examples of violations are:

• making repeated and unwanted phone calls or sending numerous texts, emails, or letters – especially if these are of a harassing nature;
• seeking to have the other party arrested without good cause;
• filing and withdrawing multiple civil suits against the other party;
• complaining to the other party’s boss and work colleagues about the other party and the terms of the separation;
• intercepting the other party’s mail;
• engaging for months in “a campaign of slander, vilification and personal abuse.”

Are punitive damages available for breach of a separation agreement?

In rare cases, a party can recover punitive damages for breach of a separation agreement.

For example, if one party breaches a separation agreement in a way that’s intended to make the other party suffer the effects of tax liens and foreclosures, that conduct could be considered “intentional infliction of emotional distress.”

Although punitive damages are not generally available for breach of contract, intentional infliction of emotional distress is a tort, and punitive damages are available in tort cases.

Punitive damages do more than just compensate one party for losses.  Punitive damages are intended to punish the defendant and discourage the defendant (and others) from doing the bad acts that led to the imposition of punitive damages.  Thus, punitive damages can be more than the actual damages suffered by the plaintiff.

What is “specific performance”?

A court can also enforce a separation agreement by issuing a decree of specific performance.  This decree orders the defendant to comply with the terms of the separation agreement.

This remedy is only available to enforce a separation agreement that has not become part of a court decree.

Normally, a court may not hold a defendant in contempt (and send him or her to jail) for breaching a separation agreement.  However, failure to comply with an order of specific performance can lead to a defendant being held in contempt of court and sent to jail until he or she complies with the order.

Even if a separation agreement says that the parties may enforce it by bringing an action for specific performance, the moving party is still required to show that:

• the moving party’s remedy at law (that is, for damages) is inadequate;
• the other party can perform (but chooses not to);
• the moving party has performed his or her own obligations under the separation agreement.

In a 2013 case, a motion for specific performance was denied because the plaintiff failed to show that the defendant had the ability to pay.  In that case, the defendant had recently declared bankruptcy.

How is a separation agreement enforced if it becomes part of a court decree?

If a separation agreement has become part of a court decree, as discussed above, the parties can’t enforce it like a normal contract.  Instead, the usual process is for one party to bring a motion to hold the other party in contempt for failing to abide by the decree.

The court can even hold a party in contempt (and potentially send him or her to jail) even to enforce provisions in an agreement that the court would not have the power to order on its own.

For example, a court normally has no power to order a party to support a child past the age of majority (18) or to pay for a child’s college education.  However, if the parties have agreed in a separation agreed that one party will pay for college, and that agreement has become part of a decree, and the obligated party fails to pay for college, the agreement can be enforced with a contempt order.

What is “rescission”?

As an alternative to enforcing a separation agreement when the other party has breached it, under some circumstances a party can rescind a separation agreement  — and start over from scratch.

This means that the law will treat the agreement as if it had never been signed.  The party that rescinds can then seek a court order for spousal support, alimony, and property distribution just as she or he could if there had never been a separation agreement.

The parties can also agree in the separation agreement that breach will lead to rescission of only part of the separation agreement (the part that was breached) rather than the entire agreement.  This avoids “throwing out the baby with the bathwater” when there’s a problem with only one part of the agreement.

It’s a good idea to file a claim with the court for equitable distribution of property and alimony at the same time you seek rescission and before the divorce is final.   That’s because if the court grants rescission of the separation agreement after the divorce was final, and there was no such pending claim, under North Carolina law divorce normally destroys the right of a spouse to seek equitable distribution of property or alimony.   The statutory rights to support, equitable distribution, and alimony may survive in only limited circumstances, based on the obligated party’s wrongful conduct.

If the court grants rescission after the parties have performed at least some of their obligations under the separation agreement, then they will be required to make restitution to each other of – i.e., pay back — the benefits they each received under the agreement.  The goal is to put each party in the same position as before the agreement was signed.  If this isn’t possible, then it’s up to the court to come up with a fair solution.

Will a separation agreement that waives child support be enforced?

No.

No separation agreement can prevent the state from acting in the best interests of a child.

Thus, the courts will refuse to enforce clauses in separation agreements in which one parent is relieved of the obligation to provide child support, or the other parent agrees not to seek child support.

Even an agreement in which one parent agrees to accept a lump sum of money to cover future child support will not be enforced if the child turns out to have greater needs.

The parents may agree about the amount of child support, and if the court agrees that the amount is in the best interest of the child, the law will enforce that agreement – even if the amount is more than the court would have ordered.

However, a support agreement must be reasonably definite to be enforceable.  In a case where a father agreed to pay for his children’s post-high school expenses, “limited to those expenses reasonably incurred in the obtaining of an undergraduate degree or the completion of a course in a specific vocation,” the North Carolina courts held that the lack of a specific amount or percentage of total costs made the agreement unenforceable.

Can a separation agreement be enforced even if one party dies? 

Possibly.

The death of a party to a separation does not automatically end that party’s (or that party’s estate’s) obligations under the agreement.

For example, a parent can bind his or her estate to support a child after the parent’s death, including after the child reaches the age of majority (18).

If the agreement doesn’t expressly state what will happen in the event of a party’s death, then the courts will look to the intent of the parties.

Will a North Carolina court enforce a separation agreement from another state?  Will another state enforce my North Carolina separation agreement?

Generally, yes.

Courts in all states are required to enforce contracts entered into in all other states as long as those contracts are valid.

Unless the parties agree otherwise, the law of the state where the parties signed the agreement will govern its validity and interpretation.

Is it possible to recover attorneys’ fees if a separation agreement is breached?

Yes, but only if the agreement includes an attorneys’ fees provision.

As with other contracts, a court may not award attorneys’ fees unless they’re specifically provided for in an agreement.

The parties may agree that the losing party will pay the attorneys’ fees of the prevailing party, no matter who sued to enforce the separation agreement.

In the case of an agreement that has become part of a court decree, if a party seeks to enforce it by bringing a motion for contempt, attorneys’ fees are in some cases available according to statute.

How can a party defend against a claim that the separation agreement has been breached?

If one party claims that a separation agreement has been breached, the other party can argue that 1) he or she did not breach the agreement, or 2) that the agreement isn’t actually valid and shouldn’t be enforced.

A separation agreement that hasn’t become part of a court decree is like any other contract.  Thus, defenses available for a claimed breach of a separation agreement are the same as for breach of any other type of contract.

Defenses come in two basic types:  procedural and substantive.

A procedural defense is a claim that a contract isn’t valid because some technical legal requirement wasn’t met.

Examples of procedural defenses are:

• mental incapacity;
• infancy;
• fraud;
• constructive fraud;
• mistake;
• duress;
• undue influence;  and
• lack of disclosure.

Since separation agreement must be signed before a notary, another procedural defense is that the parties failed to comply with this formality.

If a party successfully raises one of these procedural defenses, then the separation agreement may be subject to rescission.

A substantive defense is a claim that an agreement should not be enforced because it is fundamentally unfair or unconscionable.

Some of the most common defenses are discussed in more detail below.

What is the defense of “mental incapacity”?

 The mental incapacity of one of the parties makes the separation agreement voidable at the option of the incapacitated party.  That is, the incapacitated party (or his or her representative, such as a guardian) can ask the court for an order that the party is not legally bound by the contract.

A party does not have to be legally insane to be deemed incapacitated.  The test for voiding a separation agreement on the grounds of incapacity is whether at the time of signing the agreement the party had the ability to understand the nature and consequences of the act of signing.

A person is not considered incapacitated simply because he or she has poor judgment and acts against his or her own best interests. 

What is the defense of “infancy”?

An “infant” is a person under the age of majority in North Carolina (18).

In North Carolina, it is legal for “infants” to marry.

A minor between the ages of 16 and 18 may marry only with the written consent of a parent will full or joint legal custody, or with the consent of another person, agency, or institution with legal custody.

A minor between the ages of 14 and 16 may marry if the girl is pregnant, or has already given birth, and intends to marry the father of the child.  Such marriages must be authorized by a district court.

A district court may also authorize a marriage of a minor between 14 and 16 if the judge determines that the minor is capable of assuming the responsibilities of marriage and that the marriage is in the minor’s best interest.

It is unlawful in the state for any person under the age of 14 to marry.

Just as “infants” can marry, they can also get divorced.

A separation agreement involving an infant is voidable by (that is, can be set aside by) that person within a reasonable time after he or she comes of legal age (18).

North Carolina law makes married persons under the age of 18 competent to enter agreements about certain kinds of property.  They may waive or release any rights in property of the other spouse.

However, infants are not deemed competent to enter into contracts for other types of property or for support.

What are the defenses of “fraud” and “constructive fraud”?

To support a defense of fraud, the complaining party must prove five elements:

• that the other party made a false representation or concealed a material fact;
• that this representation or concealment was reasonably calculated to deceive;
• that this representation or concealment was made with the intent to deceive;
• that the complaining party was in fact deceived;  and
• that the complaining party suffered damages.

A defense of constructive fraud requires only proof that:

• there was a confidential relationship between the parties;  and
• one party took advantage of his or her position of trust.

A marriage is considered a “confidential relationship.”  However, a party may argue that by the time the parties are signing a separation agreement that confidential relationship no longer exists – by then the parties are adversaries and less likely to trust each other.

Failing to disclose assets that would constitute marital property (and be subject to division between the spouses) is one example of how a party might take advantage of a position of trust.
What is the defense of “mistake”?
A party can rescind a separation agreement if both parties were mistaken about a material fact at the time they signed the agreement.

Usually the mistake concerns the contents or legal effects of the separation agreement or related documents.  For example, the written agreement may not accurately reflect what the parties actually agreed.

What is the defense of “duress”?

A party may prevent the enforcement of a separation agreement by proving that it was signed under duress.

In North Carolina, duress exists “where one by the unlawful act of another is induced to make a contract or perform or forego some act under circumstances which deprive him of the exercise of free will.”

The complaining party must show that the other party (or a person acting on the other party’s behalf) made a threat, and that this threat overcame the free will of the complaining party.

The threat does not have to be criminal in nature, like the threat of physical harm to the spouse or others (such as the couple’s children).  A threat can include a threat to seek custody of the couple’s children or to withhold visitation rights, if these threats are made in bad faith – i.e., only to gain an advantage in the negotiation.

Whether a threat is deemed sufficient to overcome the complaining party’s free will depends on factors such as the age and physical, mental, emotional, financial, and medical condition of the complaining spouse.

It will be very difficult for a party to make a claim of duress if he or she negotiated with the other party only via a lawyer, and if the complaining party’s lawyer drafted the agreement.

What is the defense of “undue influence”?

Undue influence is closely related to duress.  It is defined as the unfair persuasion of a party who:

• is under the domination of the person doing the persuading;  or
• is in a relationship with the persuader such that he or she assumes the persuader will not act against his or her welfare.

Unlike with duress, there is no requirement of an actual threat.

The complaining party must prove that he or she was susceptible to undue influence.  Some of the factors relevant to showing susceptibility are:

• the age of the alleged victim;
• the victim’s physical and mental condition;
• whether the victim had independent advice (for example, from a lawyer);
• the value of the property transferred in relationship to the victim’s overall wealth;  and
• whether the victim was in economic distress or in an emergency situation.

Agreements negotiated in haste are considered especially vulnerable to undue influence.

What is the defense of “lack of disclosure”?

In most contracts, the parties have no obligation to disclose all the relevant facts.  For example, one party at a garage sale may believe that a painting is a valuable original and the other may believe it is a worthless reproduction.  One party may not fraudulently mislead the other, but there is no obligation for the parties to disclose their unstated beliefs.

However, there is a duty of disclosure when the parties are in a “confidential relationship.”  Then, the parties reasonably rely on each other to disclose material facts.

A marriage is considered a confidential relationship, but by the time the parties are negotiating a separation agreement that relationship is breaking down.

There is no clear line that marks where a confidential relationship has ended, but it has certainly ended by the point where the parties have separated, see each other as adversaries, and are negotiating through their lawyers.

What makes a separation agreement unfair or “unconscionable”?

The law imposes a general requirement that contracts be “fair,” but it’s not always clear what this means.

One commentator has suggested that “unfairness” and “unconscionability” mean that the separation agreement  “provides an amount of alimony or property for a spouse which appears to be very much larger or very much smaller than a court would consider appropriate.”

North Carolina courts have defined procedural unconscionability as “bargaining naughtiness,” “unfair surprise,” or “lack of meaningful choice,” but these terms aren’t especially helpful.

State courts have defined substantive unconscionability as referring to separation agreements with “harsh, oppressive, … one-sided terms,” or terms that are “unreasonably favorable” to one party.

A “bad bargain,” or a lopsided bargain (for example, a 62/38 property split), however, is not inherently unfair or unconscionable.  As one North Carolina court put it:
the inequality of the bargain [must be] so manifest as to shock the judgment of a person of common sense, and where the terms are so oppressive that no reasonable person would make them on the one hand, and no honest and fair person would accept them on the other.

What defenses are available for an agreement-based decree?

All of the defenses above apply to separation agreements that are “only” contracts.  When a separation agreement is incorporated into a court decree, the parties lose their contract defenses.  Different procedures apply when a party is challenging the enforcement of an agreement that has become part of a court decree.

A party that objects to the decree can seek to have it set aside if the process by which it was issued was defective.  For example, a party may argue that he or she didn’t actually consent to the decree.

Or, a party may argue that the decree was obtained due to fraud or was the product of mutual mistake.