Separation Attorney in Gastonia

Separation Agreements

A separation agreement can be helpful to parties who want to have their legal relationship following separation to be defined in an agreement that is legally enforceable. When husbands and wives are still living together but are planning to separate, it is important to have a valid written separation agreement in place to avoid one party claiming that the other has abandoned him or her. Separation agreement generally include matters such as whether one spouse will pay the other postseparation support or alimony or whether spousal support will be waived. A separation agreement may also include a property settlement agreement when the parties have property or debts that needs to be divided or distributed to one party or the other. A parenting agreement that outlines the parenting schedule for custody and visitation as well as establishes responsibility for child support should be executed contemporaneously with the separation agreement.

You are invited to inquire about separation agreements, property settlement agreements, and parenting agreements when you discuss your separation issues with Mr. Kelso. Separation agreements are generally much less expensive than going through court proceedings.


Contrary to popular belief, it is not necessary to have a separation agreement to obtain an absolute divorce in North Carolina. If you have already been separated for more than one year, it may be less expensive to move forward with an action for absolute divorce rather than going to the trouble of having your attorney prepare a separation agreement. It is necessary for parties to live separate and apart once they have a separation agreement. A resumption of the marital relationship will void all executory provisions of a separation agreement.


If you need a separation agreement, contact Mr. Kelso in advance of your appointment and obtain a Worksheet for Separation Agreement so that you will have all the necessary information at the time you meet with him.

Divorce From Bed and Board

A divorce from bed and board is sometimes necessary to accomplish a legal separation of the parties. The spouse obtaining a divorce from bed and board gains valuable legal rights, such as the right to occupy the marital residence to the exclusion of the other spouse. The losing spouse loses valuable legal rights such as:

  • the right intestate succession in the estate of the other spouse;
  • all right to claim or succeed to a homestead in the real property of the other spouse;
  • all right to petition for an elective share of the estate of the other spouse and to take either the elective share provided or the life interest in lieu thereof;
  • all right to a year's allowance in the personal property of the other spouse;
  • Couple Not Talking — Gastonia, NC — Lloyd T. Kelso, Attorney at Law
  • all right administer the estate of the other spouse; and,
  • any rights or interests in the property of the other spouse which by a settlement before or after marriage were settled upon the offending spouse solely in consideration of the marriage.
  • In addition, the losing spouse will most likely be removed from the marital residence.

Parties cannot consent to a divorce from bed and board. The action for divorce from bed and board is usually required when one spouse or the other refuses to separate voluntarily. The court, after hearing evidence, may grant a divorce from bed and board and require one party to move out of the marital residence. If both parties are at fault, the court will refuse to grant a divorce from bed and board to either spouse. A divorce from bed and board does not dissolve the marriage and does not grant to either party the right to marry another person.


Although a divorce from bed and board may be alleged (usually in cases where the parties have not yet separated), in most cases the parties can reach an agreement to separate that avoids having to conduct a trial to decide the divorce from bed and board claim. However, where neither party will agree to a separation, a trial may be necessary. If requested, a party is entitled to a jury trial in a divorce from bed and board case.

Grounds:

A spouse who is the injured party, and is free of fault, is entitled to a divorce from bed and board where the other spouse:


(1) abandons his or her family;

(2) maliciously turns the other out of doors;

(3) by cruel and barbarous treatment endangers the life of the other;

(4) offers such indignities to the person of the other as to render his or her condition intolerable and life burdensome;

(5) becomes an excessive user of alcohol or drugs so as to render the condition of the other spouse intolerable and the life of that spouse burdensome; and/or,

(6) commits adultery.

Postseparation Support and Alimony

A claim for postseparation support and alimony, often referred to as a spousal support claim, is generally made by a spouse who has substantially less income than the other spouse during the marriage and needs support following the separation to maintain his or her standard of living to which he or she had become accustomed during the marriage. The court will generally allow such claims when a spouse is substantially in need of maintenance and support, and the other spouse has the ability to pay support. The amount of support varies from case to case depending on the amount needed and the ability to pay. Once a complaint has been filed, the postseparation support claim can be scheduled for hearing. The court will set an amount of postseparation that will continue until the trial of the alimony claim. When the alimony claim is tried in court, the court will determine the amount and duration of alimony following divorce. As a general rule, the court will award alimony for about one-half the period of the marriage. However, the court has authority to make an alimony award permanent. The court also has authority to deny a postseparation support and alimony claim where the dependent spouse has committed certain marital misconduct.


In determining the entitlement and amount of support, the trial court will consider a number of factors, including marital fault. The court may also award attorney's fees to a dependent spouse who is entitled to postseparation support and alimony.


A spouse prosecuting or defending a claim for postseparation support and/or alimony will be required to complete an affidavit of financial standing that provides details of that spouse's expenses and income. It is important to provide an accurate list of all expenses for at least one year prior to the date of separation, including copies of bills. Copies of wage statements, W-2 forms, and income tax returns are also generally required. 


Mr. Kelso is experienced in prosecuting and defending claims for post separation support and alimony. These are serious cases that require an experienced family law attorney.

Division of Property and Debt -Equitable Distribution

After spouses have separated, either party may file for equitable distribution of the marital and divisible property and debt. A claim for equitable distribution cannot be filed before the parties to a marriage separate. The claim for equitable distribution will be lost unless it is filed in court prior to entry of a judgment of absolute divorce.


Separate property is not subject to equitable distribution. Separate property is property acquired before marriage and property acquired by gift or inheritance during a marriage. A claim for separate property held by the other spouse is not an equitable distribution claim. A claim for separate property may be filed at any time.


Marital and divisible property and debt is subject to equitable distribution. Property acquired during the marriage is presumed to be marital property. Even though a pension or retirement plan was owned by a spouse prior to the marriage, any contributions to the plan by a spouse from marital earnings, or by the spouse's employer, is marital property and is subject to equitable distribution following separation. Increases in the value of marital property is also marital property and subject to equitable distribution, even if the increase in value occurs following separation.


Where parties cannot agree, the trial court will divide the marital and divisible property and debt based upon a number of factors, and an equal division is presumed by the court to be equitable. 


In some cases a client may be entitled to an interim distribution of marital property or debt. This is often helpful where a party needs a place to stay, a vehicle or possession of the marital home. 


Unmarried couples are not entitled to equitable distribution; however, they may have certain rights arising from partnership, contract, and property laws for property acquired during their relationship.


An equitable distribution case generally requires an experienced family law attorney. A party to an equitable distribution proceeding will be required to assist in the preparation of an equitable distribution inventory affidavit. The affidavit will list all the property and debt, classify each item as marital or separate, place a value on each item, and suggest a distribution of each item and debt. The client will need to have all of the information necessary for preparation of the equitable distribution inventory affidavit.


In some case, particularly when a client is without funds to pay an hourly fee, and there is sufficient property to be divided from which a reasonable fee can be derived, Mr. Kelso may agree to accept an equitable distribution case on a contingent fee basis. However, the fees in most equitable distribution cases, and cases for recovery of separate property, are based on an hourly rate.

Share by: