Christian Denmon: Dealing with family law cases, including divorce, can be emotionally stressful for both husband and wife. As an attorney, it can be difficult to find yourself in the middle of divorce proceedings. Do clients usually remain professional in front of you, or do you find yourself occasionally caught in the middle of awkward situations?
Rustin Duncan: A divorce situation is extremely stressful on its own and adding the legal aspect to it. To get to a divorce the marital relationship has gone south and probably has been on that path for some time. This usually involves anger. Once you add the stress of the court system to it sometimes that anger explodes. I have seen parties in a divorce get into heated arguments in the hallway outside the courtroom and even yell at each other from their respective counsel tables in the courtroom. This is not a good idea, especially if the judge sees it.
Christian Denmon: An uncontested divorce means both parties agree to be divorced, and they agree on the details of the divorce. What percentage of divorce cases that your firm handles are contested, vs. uncontested?
Rustin Duncan: It should be noted that an actual divorce only means that the parties legally are no longer married. There are legal aspects that go along with divorce, such as alimony, child custody and support, and property division. Technically, for it to be truly uncontested all of these issues must be agreed upon by the parties and not included in the actual divorce. I would say that about 30% of our firms divorce cases are truly uncontested where there are no other issues other than the divorce. I would guess around half of our cases that start off contested end up settling prior to trial.
Christian Denmon: Why must uncontested divorces still go before a judge?
Rustin Duncan: A divorce, whether contested or not, is a court order and must be signed by a judge to be valid. The good part about an uncontested divorce is that in most situations only the attorney has to go to court to have the judge sign it, in North Carolina anyway.
Christian Denmon: Are there instances where it is advisable for a couple to handle the divorce paperwork themselves if they both agree to the terms of divorce?
Rustin Duncan: Obviously, there is no requirement to hire an attorney to handle a divorce. However, without an attorney you run the risk of making a mistake that could carry significant unintended financial and legal consequences down the road. It’s really not worth the risk, especially with our firm’s attorney rate of $250 for uncontested divorces.
Christian Denmon: If a husband or wife does not want a divorce, is the other spouse ‘stuck’ in the marriage?
Rustin Duncan: No, but one person may have to leave first (or be ordered by the court to leave) in order to get the divorce. The only way to get divorced in North Carolina is to be separated for one calendar year. If the parties are separated for that year and one party asks the court to grant a divorce, the court must grant the divorce regardless of the objections of the other party. In South Carolina the one year separation rule applies but you can also get divorced sooner if you are separated and one party has committed adultery or one party has committed physical cruelty against the other party or one party is habitually drunk or abuses drugs.
Christian Denmon: Before a contested divorce can go to trial, the court asks both parties to try to negotiate on agreeable terms. Who mediates these negotiations? How long does this process take?
Rustin Duncan: It depends. In all counties in North Carolina, and most South Carolina counties, a formal mediation is ordered by the court. Mediation is where both parties with their attorneys are in the same place but different rooms and an independent and trained mediator goes between the two rooms to help the parties reach some middle ground. The mediator fee is shared equally by the parties. The mediation requirement is waived in certain situations or if the parties can reach an agreement prior to mediation.
Christian Denmon: Are spouses required to live separately, or sign a separation agreement, before divorcing? Must they find an attorney for a separation agreement?
Rustin Duncan: A separation agreement is sometimes useful but is not required in either state. An attorney is not required for a separation agreement but it is advisable because they are binding legal contracts. Before a court can order a divorce in either North Carolina or South Carolina the parties must live separate and apart prior to divorce (see above).
Christian Demon: Is an annulment in North Carolina or South Carolina a viable alternative to a divorce?
Rustin Duncan: Annulment means the marriage never legally occurred where a divorce means the marriage is just legally dissolved. In an annulment the court cannot divide property or award alimony. The legal grounds for an annulment are restrictive and not many qualify for an annulment. To get an annulment one of the following must have occurred: 1) The parties did not consummate the marriage by cohabitation; 2) One party was under duress at the time of the marriage; 3) One party misrepresented something material to induce the other party to marry them; 4) The parties are closely related by blood; or 5) One party was still legally married at the time of the current marriage.
Christian Denmon: If a divorcing couple currently resides in two different states, say Florida and and South Carolina, which state has jurisdiction over the divorce? Can a spouse file in their current resident state?
Rustin Duncan: Each state has a set period of time a person must be a resident of a state (usually 6 months) before they can seek a divorce in that state. If they meet that time period they can ask the courts of their state for a divorce even if the other party lives in another state. Usually the state where the divorce originates has jurisdiction. There are special rules for jurisdiction of child custody that may be different.
Christian Denmon: Many stay at home parents believe they will not be able to afford a divorce attorney if they have no income. What advice would you give to a spouse who wants a divorce but believes they cannot afford one?
Rustin Duncan: The law allows a party to ask the court for temporary spousal support and attorney fees for parties who cannot afford to live and pay their attorney during the divorce process. The spouse without means usually has to hire an attorney first and have their attorney petition the court for the support and attorney fees. While nothing is guaranteed, judges tend to allow these expenses if one party makes a lot more money than the other and have no other access to money.