Divorce/Separation FAQ

Not everyone who is seeking a divorce is thinking about first getting a legal separation. At Schmitz Law, P.C., in Winston-Salem, our attorneys work with people who want to make things official and advise them of how to get there. Here are some frequently asked questions people have regarding divorce and legal separation:

I'm not interested in separation. Can't I get divorced as soon as possible?

Under North Carolina law, a divorce can be granted only after the parties have been separated for 1 year (365 full days). Crafting a separation agreement that can be included with the ultimate divorce judgment is a way to demonstrate this separation during the year-long waiting period.

When the 12 months is up, then will I have to go through the process all over again?

One of the benefits of a separation agreement is that you and your spouse can draft the terms of the divorce, if you are able to agree to them. If you can work out issues such as child custody, asset division and spousal support, then your life after marriage can essentially begin right away, and in 12 months, it would become official with a divorce judgment.

I'm willing to give my spouse a portion of my 401(k), but I don't want to pay the taxes and early withdrawal penalties. Is there a way around it?

You can actually distribute a portion of your 401(k) to your spouse, without having to pay any taxes or early withdrawal penalties. Most often, a 401(k) can be divided through a Qualified Domestic Relations Order (QDRO), which is a court order that directs your retirement plan administrator to either set up a new 401(k) in your spouse's individual name and to distribute the agreed upon amount into the new account or distribute the agreed upon amount into a similar account, such as an IRA or another 401(k) your spouse might already have. This distribution is a non-taxable event, without any penalties.

What if we change our minds and decide not to divorce? I don't want to make the wrong decision.

The waiting period exists in case people do have a change of heart. When you work with an experienced family law attorney from the beginning, you will have a trusted adviser on your side who can help you see the full picture and explain all your options.

Is there an age when my child can choose which parent he wants to live with?

In North Carolina, a child does not have the right to choose which parent he wants to live with until he turns 18. As a child matures, a judge may consider the child's wishes, but a judge must ultimately decide what is in the child's best interests when determining whether the child will primarily reside with one parent or the other or whether the parents will have equal time with the child.

The lawyers at Schmitz Law, P.C., can help you get through this challenging time in your life. Call us today at 336-893-0332 or submit your information online.