Dissolution of Marriage / Legal Separation
Dissolution of marriage is an agreed termination of a marriage by both parties. Dissolution requires both husband and wife work together through their attorneys to reach agreement on all issues necessary for a full settlement of the case. All issues must be satisfactorily resolved before the dissolution may be filed with the court. The dissolution makes no reference to why a marriage is breaking up and no allegations of fault are included in any paperwork.
The primary document in dissolution is called a separation agreement. The separation agreement is an enforceable contract between the husband and wife and will address the custody of children and related issues, property division and spousal support. In North Carolina, a couple is considered legally separate on the date that each moves into separate residences with the intention to remain apart. Other documents that are filed include a petition; an asset and liability affidavit, and a waiver and acknowledgment (if one party is not represented by counsel). If there are children, a shared parenting plan may also be included along with health insurance and custody affidavits. A decree of dissolution is granted at final hearing.
There are two stages to the process of obtaining the dissolution:
- Stage One is where the parties and their lawyers work through the legal issues in the marriage termination and reach agreement on all these issues. The necessary paperwork is then prepared and executed. The length of the negotiations of this stage is up to the parties and can be very rapid or drawn out, depending on the intentions of both parties.--it all depends on the intentions of both parties.
- Stage Two begins when the paperwork is finished. The dissolution is then filed with the court, and a hearing date is assigned – generally about one month from the date of filing. Both parties must appear before a judge for a brief, final hearing, to demonstrate that each understands the agreement. When the judge grants the dissolution, the separation agreement is incorporated into the decree of dissolution and made an order of the court. The parties leave the courthouse with certified copies of the decree. If minor children are involved, both parties will be required to attend a parenting seminar prior to final hearing.
Dissolutions contain three major categories of issues to be decided: the allocation of parental rights and responsibilities
(custody), division of marital property
(asset division) and spousal
support. First, the allocation of parental rights and responsibilities involves question of custody. The custody of a child may be given to one parent
(a sole residential parent) or to both parents through a shared parenting plan. Child support, which is determined by a statutory formula, must be calculated. Visitation rights
(in the case of a sole residential parent) must be addressed. The health insurance needs of the child will also be provided for, along with the designation of which parent receives the tax dependency exemption and child credit. Secondly, the division of property requires the proper categorization and valuation of all property owned by either of the parties as marital or separate property. Lastly, spousal support may be an issue depending upon the length of the marriage, the ages of the parties, their incomes and other factors.
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