As we discussed in Part 1 of this series, in a separation, if both spouses are willing to work together honestly to reach a resolution, it can be economical to discuss and agree on terms before seeking an attorney to draft a written agreement. An attorney should be sought to review the terms, provide advice and properly draft the agreement. Keep in mind, an attorney may only represent one spouse. So, if both spouses would like to obtain independent advice regarding the terms of the agreement, they should both hire attorneys.
With separations, there are four main areas in which decisions must be made. The below list isn’t comprehensive but it should serve as a starting point for a productive conversation with your spouse. Speak with an attorney for a more thorough list of questions.
- Asset Separation: While the specific rules regarding asset distribution in NC will be reserved for a later series, a good general rule in NC is that, absent marital misconduct, marital assets are split 50/50. A good starting point for the discussion is the creation of an inventory of all assets owned and the estimated fair market value. Then the two of you can discuss the allocation of each.
Questions to Consider include:
- Who will remain in the home and who will move?
- Which spouse will receive which car?
- Which spouse will receive the other vehicle assets such as a boat, ATV, etc.
- How will the financial accounts be divided? (Bank accounts, investment accounts, retirement accounts, stocks, bonds, etc.)
- Which debts will be assumed by which spouse? (Credit cards, student loans, mortgage/rent, car loans, 401(k) loans, etc.)
- Spousal Support: In North Carolina, as a general rule, one spouse may be entitled to spousal support payments if they are the “dependent spouse” and if the “supporting spouse” has the reasonable ability to pay. While you and your spouse may not have operated consciously on a budget before, creating a budget now is a very good idea to find out your operational income, normal household expenses and your new expenses once physical separation occurs.
Questions to Consider Include:
- Who will pay the mortgage/rent payment each month?
- Who will pay for the utilities, HOA fees, property taxes, and other property expenses?
- Who will make the car payments?
- Who will pay for health insurance?
- How will these payment be made? One monthly payment to the dependent spouse or directly to the providers?
- Child Custody: There is probably nothing more near and dear to your heart than discussing how to co-parent your children after separation.
Questions to Consider Include:
- How will you tell your children about the separation? What is the best course of action to maintain stability for the kids?
- Who will the children live with most of the time? Will it be equal? What custodial schedule would be best for your particular situation?
- What holiday and summer schedule will work best for your family?
- Will there be a need for extra daycare or after school care?
- If the parents will be living in different school districts, which school district would you like your children to live in?
- Who will be able to make medical and educational decisions for the children?
- Will the children attend therapy? Who will be the therapist?
- Child Support: North Carolina has specific guidelines that govern child support. Click here for more information and the ability to use a “worksheet” to calculate the appropriate child support payment. The algorithm is based on factors such as: 1) the income of both spouses; 2) how many minor children within the marriage; 3) how many minor children outside of the marriage; 4) childcare expenses; 5) medical expenses; etc.
You can use the child support worksheets or determine an appropriate amount on your own.
Questions to Consider:
- How much should child support be each month?
- Should you include an automatic percentage increase each year to account for inflation?
- If attending private school, who should pay for private school?
- Should you agree to contribute to a college savings account for the children?
- Should you both have life insurance to cover future child support if one of you were to pass before the children reached 18 years old.
- How should extracurricular expenses and medical expenses be divided?
- Who will pay the children’s health insurance premiums and for how long?