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Outlaw Lawyers Tackle Listener Questions concerning Divorce

Outlaw Lawyer / Josh Whitaker & Joe Hamer
The Truth Network Radio
April 8, 2022 5:00 pm

Outlaw Lawyers Tackle Listener Questions concerning Divorce

Outlaw Lawyer / Josh Whitaker & Joe Hamer

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April 8, 2022 5:00 pm

On this week's Outlaw Lawyer Family Law is the focus with listener questions. Josh & Joe are joined this week by special guest Whitaker & Hamer Attorney Taylor Scruggs-Smith as the listener questions center around family law. Divorce in NC takes center stage. 

If you have any legal questions of your own and need answers call Whitaker & Hamer Law Firm 800-659-1186. 

Law, Divorce, Seperation, Attorney, Legal, Trial, Lawyer

See omnystudio.com/listener for privacy information.

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This week on The Outlaw Lawyer, we have attorney Taylor Scruggs-Smith joining us in studio. We're going to answer a lot of listener questions kind of related to a domestic family law type of theme.

And we're going to get into that next. And now, Outlaw Lawyer. Welcome into The Outlaw Lawyer.

I'm Morgan Patrick, consumer advocate. I'm joined on stage, on set, Josh Whitaker, Joe Hamer, managing partners at Whitaker and Hamer. We also have Taylor Scruggs-Smith, an attorney with Whitaker and Hamer. Whitaker and Hamer law firm. We've got offices in Raleigh, Garner, Clayton, Goldsboro, Fuquay, Verina, and Gastonia.

And as I mentioned, the guys are managing partners at the firm, practicing attorneys here in the great state of North Carolina. If you've got a legal situation you're going through and you need answers to questions, I've got a number for you. 800-659-1186. That's 800-659-1186.

Just call, leave your contact information, briefly what the call is about. An attorney with Whitaker and Hamer will be in touch. And you can always email your questions to the show.

It's questions at theoutlawlawyer.com. Gentlemen, we've got a lot to get to today. We do, Morgan. Lots of stuff to talk about today. I like to remind people, I think I need to remind people, here on The Outlaw Lawyer, we're here as attorneys to answer legal questions. To talk about the law, talk about things in the news. It takes us a while to really get in the groove, though. We have to talk about some other stuff before to kind of loosen us up and get us in the mood. So, we haven't sat down together since the Final Four, I don't think.

That is correct. And I didn't watch the Final Four games. I think I predicted on our last game. You watched none of it? I watched none of it. I watched the new Marvel. I watched Moon Knight and some Bob's Burgers with the kids. Great show.

Yeah, yeah. How was Moon Knight? I liked it. I enjoyed it. It wasn't anything crazy. It was one episode, right?

You didn't watch the whole... Yeah, it was just one episode. Yeah. That's what we did.

Yeah. But you obviously, Joe, I can't imagine you were too happy with how everything turned out. It was fine.

It was no big deal. It was a game. Saturday, early game, Kansas, Villanova. Not a very entertaining game.

No. Kansas really outmanned. Kansas won that game like in the first like ten minutes. Very true.

That's what I did. And then that second game. Second game. Yeah, it was a game, you know. Pretty good ratings.

Yeah. A lot of people watched. WrestleMania was on, too.

That's right. I watched some WrestleMania. Update.

It was good. Did Stone Cold show up? He did. He did.

And he's older. There's only so much he can do. But they did.

I thought they did. You know, he had a bad neck. Was never supposed to like wrestle again. And he did a lot, man. I was surprised.

Yeah, I couldn't do what he was doing. Yeah, I watched that game. Whatever game it was, I can't remember whoever played. And it wasn't the most exciting game. And kind of a downer for most of the world. But then I saw, I turned on WrestleMania and saw Stone Cold. Oh, that's a nice way to end.

And it really picked me up. Yeah. Was he ever sponsored by Miller Lite, I guess?

No, no. He's got his own beer now. He has his own brewery. That's probably why he came back. He drank like, what, 16 of them during the time he was out there?

Just taking a bath in it, though. But it was a lot of nostalgia, man. A lot of nostalgia.

For me, I was a young boy during his heyday. So, Joe, tell us why you turned away from the basketball game. No, I watched the whole game.

I saw it. And you can look at it a couple of ways. Like, you can look at Carolina's season and you can say, like, well, they had double-digit losses. They won nothing of consequence, no championships. You know, and you can say they didn't win really anything.

Like, no, again, there's no hardware coming home with them. And so you can say, well, they'll never be remembered as a team in history. But the other perspective is they will always be the team that has the largest choke job in national championship history. And for that, they'll always be on the record books. And no one's going to forget that team for the failure that they were. So, you know, it's either way.

I think it's a hot take. I think if we take the season for what it is, it's not how you start, it's how you finish. Okay, that's a good point. And we did finish second. Yes, if you're not first, you're last. And I did say we, because if you guys noticed in any of the footage, I'm right there on the bench.

I went in late in the game. I think if you're a Duke or Carolina fan, you take the two teams records and their seasons, you take their names off of it. So you got a 29 and 10 team that wins nothing really. You know, they go to the national championship game. That's a thing, but they lose it. And then you have a 32 and 17 that wins the regular season conference championship.

Which team are you going to take me? Take everything out of the equation. You just look strictly at that. I faded out for a minute. Okay, that's fine.

But took a nap? Well, I'm a state fan, so I don't have a... I'll say, though, it was if Carolina wins the championship, which it looked very probable like they would have. Honestly, if you watched that game, which you didn't, but by halftime you were like, this is a done deal, it's over with.

Carolina wins that championship, but it hurts a lot more than it does them. So you're okay. You're okay. It was like that evening. Life can go on.

Yeah, that evening and then probably like six hours or the next day. I was a little like, oh, you know, this isn't the best thing that's ever happened. But I'll never watch the game back again.

I'll never watch any second of it. You kind of disconnect from social media. Well, they are calling the Duke Carolina game in the Final Four one of the better Final Four games that they've seen. Yeah. It was fun.

Back and forth, 18 lead changes. I mean, you can't really argue with that. And even Carolina fans I know, no one enjoyed that game that's a true fan of either team until the very end. Just like I said, no one enjoyed it. Agony. It was completely stressful. So you don't even appreciate it.

Like you don't even remember the ebbs and flows of the game because you're so consumed in it. So I have no idea if it was a great game. I just thought it sucked the whole time watching it.

It sucked to the bitter end. And so one of one of our attorneys over at Whitaker-Hamer, Taylor Scruggs-Smith, is with us today. I take it you didn't watch the Final Four, Taylor? I did not. I have never been into really college sports like that.

I am originally from the Maryland-DC metro area. I care. You got a pro slant up there.

Yes. I care more about NBA, which is why I'm very sad right now that Lakers are completely out of the playoffs. I think, I can't remember the last time LeBron wasn't in the playoffs. So are you a Lakers fan or? No, I just like LeBron. I am a Miami Heat fan. And Miami Heat is deep in. Yeah, yeah, they're in. So I'm good right now. So a couple of actual, we get so caught up in sports when we get started to get the juices flowing.

The proverbial juices flowing. We woke Joe up. That's right. That's right. I was awake from the start, man.

I'm ready. So we've talked about it for a week or two, but Kontaji Brown Jackson, Supreme Court nominee, has performed very well in her Senate confirmation hearings. Hard to find anything negative to say about her.

I know some folks have tried, but nothing that I don't think we already have kind of talked about. But I know a couple of Republican senators came out saying, hey, we're going to vote for confirmation. So in a 50-50 Senate, that kind of tells you we're probably headed towards confirmation. So I think that's a good story all around. We talked about her qualifications before here on the show.

We had a panel. I think everybody agreed, no matter what side you sit on, you know it's going to be a Democratic nominee. So if you're a Republican, you're still getting a Democratic nominee, and all things considered, they've done a pretty good job. I would agree. And I think that makes, assuming, and it does look likely that confirmation does occur, it's another mark on our book of perfect prediction. The thing that's really important here. It's nice to have a confirmation hearing that's not super contentious. It seems like the past couple have been really true. Anyway, so that is a legal thing that's happened that we've talked about.

I just wanted to keep everybody updated. And then, I think it was just yesterday, so we've talked about how there's a couple of abortion cases up before the Supreme Court. The Supreme Court has heard oral arguments on a couple. We haven't had a decision come down yet from the Supreme Court. And so in the absence of guidance, a lot of states who are more anti-abortion, more pro-life, you've seen a lot of legislation from these states really cutting down when an abortion, when someone can get an abortion, who can perform an abortion. And Oklahoma kind of went further than everybody yesterday and pretty much just a straight out ban. Yeah, they pretty much came out and said, they put criminal actual attached to criminal consequences, so it's going to be a 10-year fine, I mean a 10-year sentence and then a $100,000 fine. That's for anybody performing, right?

And that's for anybody performing. And the only exception they're making to that is to save the life of the mother. So that's the most kind of blatant anti-abortion law we've seen in a very long time. And so we've talked about these laws right now, the law of the land, the federal law is Roe v. Wade, and we've spent a whole show on Roe v. Wade, but Roe v. Wade found abortion to be a constitutional, an implied constitutional right, kind of set up some time safeguards, and that's still the law of the land. That has not been, you hear a lot about it in the news, it has not been reversed, that's still the way it is. The Supreme Court may be limiting it, we may see that come up, but for right now, states like Oklahoma are really just going out there. Almost to the wall.

Above and beyond the call of duty as some may say. I read this one doesn't take effect until I think 90 days after the state legislature adjourns. But that is the most aggressive anti-abortion state legislation that we've seen so far. And I think it passed the House with no debate, so that was one of the other big things that was coming out with how fast it got passed because there was no debate about it. They just passed it and voted on it.

That seems nuts. Yeah. No debate?

No debate. Yeah, and I don't know much, I just saw like the story like late last night, so I haven't read about the, you know, if there was anything that got skipped or it was just that it had that much support in that state. I think the census from some of the articles that I've been reading because this literally just happened like maybe 16 hours ago, was that this really happened so fast because there was already so much support.

Yeah. So they had no debate. As soon as it hit the floor, they voted and it got passed.

And I believe the governor has already come out and said that he'll sign any anti-abortion law, so we're expecting that this is going to become a law and probably likely to get challenged. I think it's a guaranteed. Team challenge. Yeah, they got it queued up. That's a lock waiting. Yes. They got it queued up.

They're waiting for the first person in line. Well, soon. And it may, in a couple of weeks I would expect that we're going to finally hear from the Supreme Court. We're finally going to get an opinion on the two cases they have before them and that will really, this stuff will either be wildly illegal or it'll fit under the new, you know, of course this Oklahoma one's not going to fit under anything. It's either. Yeah.

Right, they have to completely overturn Roe v. Wade. But anyway, so today most of our show we're dedicating again to listener questions. We had, we didn't do a listener question show for a long time. We had an abundance of listener questions build up. So that is what we're going to tackle today.

All right. The outlaw lawyers, Josh Whitaker and Joe Hamer. You can find them at Whitaker and Hamer Law Firm, the managing partners there. And again, practicing attorneys here in North Carolina. Our special guest is Taylor Scrugg-Smith, also an attorney with Whitaker and Hamer. If you've got a legal situation you're going through and you've got questions, well, we've got a number for you and you can call at 800-659-1186. That's 800-659-1186. Leave your contact information, briefly what the call's about, and an attorney with Whitaker and Hamer will be in touch.

And you can always email the show and we'll use them on future programs just like we are today. Questions at theoutlawlawyer.com. When we come back, we'll get into divorce in the state of North Carolina. Welcome back in to the Outlaw Lawyer. Morgan Patrick, consumer advocate. I'm joined by Josh Whitaker and Joe Hamer, managing partners at Whitaker and Hamer and practicing attorneys here in North Carolina. Our special guest is Taylor Scrugg-Smith, also an attorney at Whitaker and Hamer. We're about to get into divorce and the state of North Carolina.

Before I do that, let's do this. There's a phone number you can call. If you've got a legal situation you're facing and you need some answers to your questions, 800-659-1186. That's 800-659-1186.

Leave your contact information, briefly what the call's about, and an attorney with Whitaker and Hamer will be in touch. And as always, you can always email the program, questions at theoutlawlawyer.com. We'll use them on future programs. We'll get to some of those questions here a little bit later.

Guys? Morgan, one of the things we like to do on the show is we like to engage with our listeners. We get a lot of calls to the hotline. We also have an email address.

A lot of people will send us in things. And so our first question today, we really haven't tackled, me and Joe don't live in the family law, domestic law world from day to day. Taylor does, and that's one of the reasons Taylor's visiting us with us today, so we can handle some of these family law listener questions that have been building up here. So the first one, and again, I kind of take a couple of questions and put them together and kind of formulate one that we can talk about on air.

But the first one's pretty basic, and we get it a lot. Basically, our listener here says, I want a divorce. What are the bare bones requirements that I have to meet to get a divorce in North Carolina? So here, our listener is married, has been married, has made that painful decision that it's just time to get a divorce.

That's what I want to do. And that's a call we get a lot at the firm. And so Taylor, when you sit down with someone who has kind of made that decision, we'll say our listener here is married, living with their spouse. We're going to give them some kids. Give them three kids. Three kids.

Two boys, a girl. They live together. They're in the same house.

The house, it's titled to both of them. And so we're just going to try to make this the most normal, average divorce situation that we see. So when that person, when this listener comes in and says, you know what, can't do it anymore, we'll just even make it a super nice situation. It's a mutual decision. They both have decided, hey, this ain't working out.

What can we do that's best for the kids? So we've got that person coming in. What's their first step once they've made that decision?

First step is a step that nobody likes. You actually have to separate. North Carolina is very particular about that. The statute says that you have to remain separate and apart for a continuous year. So you can't even file for a divorce until you've been separated for a year. And separated does not mean living in the same house and just staying on separate sides of the house. We get a lot of calls about that too.

Can't do that. You guys have to actually be living in separate households, paying bills separately, being male at separate places, truly saying that you're not together anymore. This is a good time to remind everybody that we're all licensed to practice in North Carolina. And so when we talk about these things, we're talking about North Carolina law.

In my mind, our listener is a North Carolina citizen subject to the laws of North Carolina. And so North Carolina, there's no quickie divorce. So obviously this is a big emotional decision that you have to come to. But it's also going to be a financial decision, a lifestyle decision.

A lot is going to have to change. And the big thing is too, North Carolina is a no-fault-based divorce. So that's the other reason you have to wait for that whole year because the only grounds to get divorced is that term of separation. So you can't say, oh, he cheated or somebody else cheated and I want a divorce. You still have to wait.

You still have to wait. And that's not to say, and this gets into a more complicated area of discussion, but that's not to say that fault is irrelevant. Right, it's never relevant. You're just saying fault is irrelevant insofar as the question of can I get divorced. Right.

Obviously anything that happened during the marriage can come up in terms of other areas, but whether or not you can actually go to the court and say divorce me, the fault doesn't matter. Right. I think that's the biggest hurdle for people. And I always just thought, I don't know this to be true, but I always just assumed that was part of the statute to discourage divorce or to make people think it over. I don't know that to be the case, but in my mind that's kind of always how I... I think it is to discourage marriage, but I think it's also to spend that year to handle all issues, to encourage mutual agreement to figure out these issues without court time. Yeah, I think that makes sense. Because a lot of people sometimes don't even really know whether or not they want to stay separated. And part of the statute says you have to separate with the intent that it's permanent.

Right. So if you guys, three months after you separate, start going to marriage counseling and tell everybody you're married again and then you move back into the home, you've got to start that whole year over again. You're resetting that clock.

You're resetting that clock. So I think North Carolina appreciates the sanctity and the sense of marriage and they really want people to really think things through. And if you're going to fully go through with it, go ahead and start figuring out some of these long-term issues like child custody and the money and not have to make it so contentious in a courtroom. Yeah, I think the statute and then just general practice of how it plays out, the state really encourages that amicable mutual resolution any way possible. Because again, it uses resources. The contentious process, it's not good for anybody. Especially for kids.

Especially for kids. Yeah. And we'll talk more about that.

We've got another listener question coming up here in a minute that we'll talk more about some of those items. But for now, basically, you have to be separated. Permanently separated for at least a year, living in different places. And of course, a lot of households, that's a financial... That's a real financial consideration.

Right. A lot of times if you're in a divorce situation, a lot of the ones that we see, there's some financial distress usually in there. Maybe one spouse is not good with money. There's usually financial concerns that have led up to this decision. And on top of that, now you're going to have to find a way to have two households. Right. And if kids are involved, like you said, until something's written down and agreed upon, you've got to figure out a way to transport the kids back and forth to make sure everybody's seeing the kids.

So there's a lot of things that go into it. And I would like to add in that what we actually tell people, even though the statute says a year, we like to tell people when they're doing consults, it's a year and a day. Oh. Because you can't file on day 365. Right, right. You've got to file on day 366. I got you. That makes sense. That one day is crucial.

That one day is so crucial. A judge will knock out the entire case if it's too close. And then there's things in the... Well, I guess we've got another listener question I keep hitting to, but we've got another one coming up, so we'll talk about that there. So you've done it. You've separated from your spouse. You guys have worked out the issues you need to work out during the separation period.

And you're at day 366. And who files? Either party. Either party can file. So it doesn't matter who files. The main requirement is that at least one party has to still be in North Carolina. So done a divorce before where husband was actually the one filing, but he lived in Georgia, wife still lived here.

So as long as one party is still in North Carolina, you can file. And it's like a complaint, some basic documents to get started off. One thing that trips a lot of people up, though, is this thing called service, because you have to actually send all the documents that you filed to the other party. And right now with how COVID has messed up the postal service, we have to do that by certified mail or sheriff. And post office certified mail is the green card that they have you sign.

During COVID, they weren't having everybody sign because they weren't letting their carriers go up to the actual people because they could have been sick or anything like that. So what we did to kind of help combat that in a sense was just start putting in with our documents to them an acceptance of service because that's the one thing your spouse will have to sign. We have to in some way prove they got the docs. They don't have to do anything else, but we do have to prove that they received the documents.

It makes sense. Divorce is a legal proceeding. It's a complaint.

You're suing somebody. It's a formal complaint process, and the person on the other end always has to have notice. There's different kinds of notice, constructive notice, implied. But they have to hear actual notice. We need to know that they received it, and they know they're aware of what's going on.

Right. It doesn't matter if they don't reply to anything else after that. They either have to have signed a green card, the sheriff has to have posted it to their door, or they voluntarily sign an acceptance of service. All right, so you filed it, your spouse has gotten notice, and so then I take it there's a scheduled day in court after that. Yeah, so you do have to wait the 30 days. Your spouse has 30 days with which to reply. They don't have to reply, but we have to wait that 30 days. Courts are very particular about these timelines. You do have to wait these full 30 days.

And then after that 30 days is when we can file for a court date to get it moving, typically about two, three weeks out from the date you requested. And then that's it. So you show up to your hearing.

Let's assume everything else, we're not talking about property, splitting up property. We're not talking about anything else, just the act of getting divorced from a spouse. So then you show up for your day in court. As long as everything else is handled, judge is going to give you an order? Judge is going to sign an order. The main thing, judge is looking for the file for is they want to know the date of separation, the date you signed the complaint. They're checking for that year. They're checking for, was it day 366 or day 365.

And they're checking to make sure service is actually in there. As long as those things are in there and everything was done properly, sign off on the divorce decree, you're divorced. Yeah, the fact that there's no fault involved is really just a procedural question.

You dot the I's and cross the T's right and you're divorced. Yeah, if you take property, child custody, if you take all that stuff out of it and you just look at it as two people getting divorced from one another, it's not an overly... Super simple. Right. I think it's safe to say it's super simple. Legally.

Legally. But I think it's also important that we mention this fact pattern is a super simple fact pattern. We're taking all those things out of the equation. But those things are super relevant and the act of absolute divorce is going to terminate a lot of rights that you would otherwise have. So again, I think we'll get into this in our next question, but those are all considerations. You need to be careful if you're an unrepresented party just going down filing simply for divorce because once that's done, you're going to lose a lot of rights you would have otherwise.

And I'm glad you brought that up because that's especially true because the procedure in North Carolina is like once the judge signs off on that divorce decree, once the judge's ink is on there, you cannot go back to the court and try to say, oh, now I want alimony. Oh, now I want half of the house. It's it. It's it. It's over. That's the cutoff. Right. So if you didn't have those matters already pending or you didn't have some type of separation agreement or you didn't have something previous to that, you're done.

You have no more rights to that house, that retirement account. This is. Yeah. And it's definitely this is, you know, we talk about some things quickly, right? We have our little segments we like to stick to.

And so we try to just hit on some some highlights. Obviously, we're not consulting anybody right now. We're just trying to paint a general picture of the process. And yeah, hopefully we haven't made it sound too simple because there is a million things that could go wrong that need to be handled for a certain point. But legally speaking, that's the process. Separated for a year, file for divorce, get your spouse served, show up in court.

You're divorced. That's like what you're saying, Josh, is you should consult a licensed attorney. Possibly to begin possibly with a career namer.

Who knows? Well, the name is literally on the front. But, you know, this is one of those things where even just a consult, you know, if you just schedule a consult with an attorney, you can get a lot of questions. You know, I meet a lot of people who don't don't want to pay for advice.

And, you know, I get it. You know, I don't want to have to pay an attorney. I don't want to have to pay a CPA.

I don't want to have to pay an investment advisor. And I get that money's tight for a lot of people. But a consultation with an attorney who knows what they're doing, they can answer every question you have. You don't have to just keep going forward with these things unanswered, with these questions unanswered.

You can say, hey, answer question A, B, C, D, and they're all answered. And you've got to you've got a way forward. I know one thing one of our colleagues says is sometimes it's better to talk to an attorney at least once to save you thousands of dollars in the long run. Right. I mean, everything you own is going to everything you own, care about, love is going to be tied up in this marriage in theory. Right. You know, anyway. And money.

Money's always tight. And but you can't. It's just a lot easier to talk to someone that knows the process, knows what's going on. I can just answer the outlaw lawyers. They've been there.

They've done that. And talking to a professional as opposed to your your friend at work seems like the right way to go. The outlaw lawyers, Josh Whitaker and Joe Hamer, Whitaker and Hamer Law Firm, is where you can find the managing partners there. They're also practicing attorneys here in North Carolina. And again, our special guest is Taylor Scruggs Smith, also an attorney with Whitaker and Hamer.

And just a reminder, Whitaker and Hamer offices in Raleigh, Garner, Clayton, Goldsboro, Fuquay, Verina and Gastonia. If you've got a legal situation, maybe you're considering divorce. I've got a number for you. Eight hundred six five nine eleven eighty six.

That's eight hundred six five nine eleven eighty six. And again, leave your contact information briefly what the call is about. You can also email your questions and we can talk about those anonymously on future shows. Questions at the outlaw lawyer back right after this. Welcome back into the outlaw lawyers. Morgan Patrick, consumer advocate. I'm joined on set by the outlaw lawyers, Josh Whitaker and Joe Hamer, managing partners at Whitaker and Hamer Law Firm.

Our special guest, Taylor Scruggs Smith, also an attorney at Whitaker and Hamer. And we are getting into listener questions. And the next one up is separation agreement. Yeah. So it's another question we get a lot kind of on the we're on our family law show, domestic law show here.

And another question we always get again, I'll I'll combine it with a bunch of other questions. But basically we've got a listener who is separated. I am separated. Do I need to have a separation agreement?

Right. So we've got someone who has made a made a decision to get separated from their spouse. And well, I guess, Taylor, just tell us what a separation agreement is.

We'll start basic. So a separation agreement is essentially a contract between you and your spouse saying this is how we're going to settle everything that occurred during our marriage. This is how we're going to settle property. This is how we're going to settle kids, child support, alimony, all of it. We do get a lot of questions of people thinking they need one in order to get divorced.

And you do not need one. People think you need to have one filed with the court in order to actually get divorced a year later. The court does not need an agreement as proof that you're separated. Once you guys have split up and you're in separate houses, that clock starts for the year you're separated. The date of separation sometimes is fought back and forth because of how it values property. But the court does not need a separation agreement to prove that you're divorced. Right.

So that's a good thing to point out. There is no legal requirement. If you're going to get divorced from your spouse, you do have to be separated for a year.

We talked about that. But you don't have to have a separation agreement. So it's not anything that's legally required. However... That's a great idea.

Yeah, they can be pretty handy because they can tackle a few things that need to be tackled or they can tackle almost everything. Right. And the good thing about that is in a separation agreement, it is a negotiation between you and your spouse. So instead of going to court and putting it in the party of all this information in the hands of a judge who you have no control over, your attorneys have no control over, we just fight for the best outcome by the end of the day.

That judge is making the call. So it's always going to be an uncertainty. Whereas in a separation agreement, you know, OK, I agreed to this term because she's getting this or he agreed to this term.

I'll get this. Like, you know what the terms are and how you negotiated those terms. And sometimes it's cheaper in the long run because you're not spending a lot of time in court doing hearings about those matters.

Well, I'll give you one example that I see every day. You know, in my in my day to day life at Whitaker and Hamer, I deal with a lot of real estate transactions. And so you've got a couple who's decided to get separated. A lot of times those at least one of those folks is about to go buy a new house because they're going to they're going to separate. They're going to create a new household. And it's really hard to buy a new house if you don't want your spouse involved. In North Carolina, spouses have certain marital interest in real property until you're divorced.

And so that presents a problem. If you're going to go buy a new house, you're going to get a mortgage. Sometimes your lender, sometimes your closing attorney will want your your spouse that you've separated from to sign some paperwork or have something done. And so even a bare bones basic, we don't have to figure everything out. Separation agreement will have what we call free trader language in it.

Yes. And free trader language is very important. Free trader language essentially says that you can go out and buy property without your spouse. And they're waiving all rights they would usually have to it because the presumption in North Carolina is that anything bought during the marriage is marital property.

And that's a pretty big presumption to overcome. So it has to be a written express waiver that they're not taking rights in your new home. And that same aspect, we get a lot of people that are selling that marital home that they used to live in. And if you want those proceeds split up in a certain way, attorneys like us need some type of written agreement saying we're splitting the proceeds 60 40 50 50. Otherwise, the rule is we split it half and half even if you agreed otherwise.

I always like that term free trader. Yeah, it's a cool term. It is. And going back to something you said, you know, talking about the value of that separation agreement, you know, if you've got things that are contentious, if you've got things that you were contesting with your spouse, you're either going to amicably agree and you're going to put it into a separation agreement where you guys, like you said, each have some say or the alternative is it's going to be a judge's order. Right. And like you said, you can make your suggestions, you can plead your case. But at the end of the day, you know, having retaining some control over that, as opposed to everything just being dictated by that order is is almost 100% of the time going to be preferable.

And now you might get in a situation where you have a person that you can't. Right. Right. And it just is what it is at that point.

Right. But if at all possible, even if you got to make some concessions, you know that the separation agreement route is going to give you more control over the outcome. And I try to tell people that when it comes to separation agreements, it's not about you coming out with what you think you should have out of marriage. Neither one of these parties are going to be happy about this split and how all the money in the house and everything happens.

The goal is to get you both to a place where you are at least acceptable and can live with it. Right. Versus being like your best.

This is my dream version of how this happens. Because it could be worse. Right. It can always be worse, you know, that it could always be worse. I'm not saying it will like I don't know if it's the attorney in me or but I've always been one of those guys like control what you can control, you know, in a separate separation agreement, as long as everybody's willing. Again, if you're dealing with someone who's irrational or you know, not not willing to even negotiate, then there's nothing to do. But if there's anything you can agree on, like a separation agreement, you could agree on tons of stuff. You could you could agree on child custody. Yes, you could a child support separate, you know, post separation support. You can split up everything like you could take care of your whole divorce besides the actual divorce.

You can take care of all your assets, everything in a separation agreement as long as the two parties are agreeable. Now, you've got two people who are parting ways. And so this, it's not always agreeable. And like you said, Taylor, it's hard to find a scenario unless you just got a ton of assets, where everybody's going to walk away feeling like they didn't get screwed over.

Yeah, ripped off or you know, it's just it's just the way a lot of emotions running hot, you know, even with reasonable people. But you can take care of a lot of stuff in a separation agreement. In theory, you're getting separated. Everybody wants to kind of get on with their lives, you know, and a separation agreement will allow you to go buy a house, right?

Right. Well, we'll allow everyone to know where we stand with the kids and the schedule and, and you can kind of function without a lot of the stuff being up in there. You're waiting a year minimum for your divorce.

Minimum. And the that separation agreement can be done day one after you separate in theory. So it can it can allow a lot of the healing and that that that process of moving on to start. So separation agreements are even done prior to you actually splitting up and moving out like okay, we know this is what we're about to do.

So while we're still working with each other, we're going to go ahead and put this in here put this is our anticipated data separation and fix everything now. And that's something people do too, which is perfectly fine. The only thing a court can touch after you do a separation agreement is child custody and child support because that's always going to be in the judge's jurisdiction until the kids are 18. And that being said, that's true. But at the same time, you, you can handle those matters by way of a separation agreement. And if both parties agree, yeah, on that no one can test it down the line. There's no change of circumstances and that's going to hold up.

So you got to control the better. And it's, you know, separation agreement, it's not a magical document, we talked about separation agreement, it's a contract between two people. It's it's governed by contract. So enforcement is right can be an issue. So you you would like a party could breach it, right? You know, if somebody doesn't make their post separation payment by a certain date, they've breached a contract. And that's that's the that's the remedy there, right? You would sue somebody for breach and a lot of separation agreements will say if you sue, and you win, and you had to fight for breach, you get your attorney's fees.

Yeah. So, yeah, it's worth having all of that written out. And like you said, even when it comes to the kids, you're waiting a year, the courts going to make you go to mediation anyway, right? You're separate from your spouse for a year, like you said. And if you've got kids, like there was gonna have to happen with your kids, right? You know, so it's either the court, like you said, is going to be dictating that ahead of time, or you're going to come to some agreement that while it may not be perfect, it's you're at least going to have some say.

And even when you file in court for child custody, the court forces you to go to mediation first, the court wants you to work it out. So you might as well start. Yeah. And again, there's a caveat if your significant other is just one of those folks who's unreasonable, not in a good place, or there's some other things going on, you know, it might be tough and you might be in court, you know, looking for a judge's assistance to kind of get things moving along. But hopefully, you know, in our situation, we're giving our listener a pretty good situation where we're assuming they can work together. Yeah. But the separation agreements are handy. And I really think it enables you. Again, you got a year to wait, but it enables you to, to kind of move on with your life, you know, kind of get your ducks in a row and, and kind of get to that next step.

The outlaw lies. What's up next? More divorce, more family law, a lot of families, more family law, the outlaw lawyers, Josh Whitaker and Joe Hamer, Whitaker and Hamer law firms where you can find them at the managing partners there. They're also practicing attorneys here in the great state of North Carolina. Our special guest is Taylor Scruggs Smith makes us look so much better.

Since you're you're able to view us. If you have a legal question of your own, and you need answers, I have a phone number for you. 800-659-1186.

That's 800-659-1186. Just leave your contact information briefly what the call is about an attorney with Whitaker and Hamer will be in touch. You can always email the program questions at the outlaw lawyer.com and we'll get to that in a future program.

More questions coming up after this. Welcome back into the outlaw lawyer, Morgan Patrick, consumer advocate joined on set by the outlaw lawyer, Josh Whitaker and Joe Hamer, managing partners at Whitaker and Hamer law firm, practicing attorneys here in North Carolina. Special guest on set with us today. Taylor Scruggs Smith, also an attorney at Whitaker and Hamer. We're handling listener questions.

If you've got questions of your own from a legal standpoint, you need some answers. I've got a phone number for you. 800-659-1186. That's 800-659-1186. Leave your contact information briefly. What the call is about an attorney with Whitaker and Hamer will be in touch and you guys can discuss.

You can also email your questions to the program questions at the outlaw lawyer.com and we continue. We do. So we have a listener question show today. We've been. We've had a theme.

The theme is basically been divorce. So we've been talking about kind of domestic law family law issues that come up again. I will remind everybody who may be listening that we are all attorneys. We're all attorneys.

Morgan's not. We're all everybody else besides Morgan is an attorney. Are all attorneys with the law firm of Whitaker and Hamer. We are licensed to practice in North Carolina. When we answer these listener questions, we're answering them from a perspective of someone who is resides in is domiciled in North Carolina. And so we have had a question come up where we talked about the basic legal requirements for divorce. That was our first listener question.

Our second listener question today was about the necessity. Of a separation agreement with a separate separation agreement is what it does for you. And now we're coming to our next question that kind of builds on this and basically this listener is I'm getting divorced. My spouse is not going to agree to anything.

What are my next steps? And so basically the way I take this question is like a there's not going to be a separation agreement. They're not going to agree to anything in the interim. We've talked about how you have to be separated for a year. They're not going to come to terms on anything.

What is this client in for? Like what comes next in this situation? Taylor or courts? The big thing that comes next.

If you guys can't agree about anything so. With court comes having a lot of financials together and ready to go because you're going to be filling out a lot of financial worksheets about the value of property about what your regular expenses are. If you're about to fight about alimony because we need to know what all the expenses were on the date of marriage or like the previous years and what they were on the date of separation. So if you guys have split and the income is now completely changed. Because you're not a two income household anymore, we gotta know alright who's who's really actually needs money and who is just spending maybe on luxury items they shouldn't be spending on. What's the value of those retirement accounts? But all of that starts with the attorneys getting a lot of financials. Yeah, yeah, a lot. But you gotta you gotta know you gotta know a lot about you know the household, how it worked, who had what, who inherited what from where, where did these funds come from for the down payment of this house?

And again, where everybody's spending money on. And at that point, I think it's important to note it's not, you know, in that negotiation process, we've our fact pattern has been very amicable. But you get to this point, it gets contentious the cork involves. It's not he said she said at that point, like you said, it's it's hard physical documentation. Bank statements.

Exactly. Because you're gonna it's a court proceeding. Yeah, you're gonna end up filing a complaint, either party, you're gonna end up having somebody file an answer back.

That's not nice. And possibly doing counterclaims on that answer. Probably got two attorneys on both sides hearings. A consent order may be reached, because everybody's like, Oh, my goodness, this court process, but you can't assume that you're assuming you're going to a hearing and a judge is going to hear all this evidence and make a finding and make an order.

And there's a lot of person, I mean, this is, this is going to be a lot of personal information that is is out there kind of in a public forum, right? Because you may even get into arguing, we haven't talked about alimony and fault, no fault and that kind of thing. But you may be litigating about, you know, extramarital affairs or the way you treat your kids or, you know, this, this is going to open up a public forum to judge you on a lot of behavior that at least one of the spouses may not want to want out there.

But, hey, it can't become someone agree, it's gonna have to come out. When it comes to alimony. If there was an extramarital affair by the dependent spouse, they can't try to ask for alimony from the supporting spouse. If both parties had an affair, judges discretion, which means we don't know.

Right. That comes back to the relevancy of fault. You know, we talked about how fault is completely irrelevant as to the question of divorce. But when we get into these, you know, equitable distribution, post separation support, fault is extremely relevant.

There are several factors that are fault based that matter a whole lot. Yeah, equitable distribution, which is how the courts puts up your property, has 16 factors that can play into an unequal distribution. Key word is that it's equitable distribution.

It's not equal. The court tries to make it equal. But if there's factors showing extramarital affairs, misappropriation of marital funds, you've been just spending money left and right, or you abandon the family.

Those things can come where the judge is like, you know what, they deserve it. More of what's left over because they've had to deal with more or they got more to cover when it comes to child custody. Standard is the best interest of the child, so I always try to remind people it's not about whether you liked him as a husband. It's about how he is as a father.

It's not about whether you liked her as a wife. It's about how she is as a mother. So when that means who's taking the kids to school regularly? Who knows their school schedule? Who knows what homework they got? Do who's been speaking to the teachers? The doctors?

And that's a lot of information and. The sorry, it reminded me of a stand up bit. It's not a funny topic, but the again. Like I said, I live in the real estate transactional world, the business law world, and we we do a lot of risk management. We don't want things left up to a judge.

We want it black and white. What happens when this happens when this happens when this happens? So having this type of all these these very personal things that you're used to having control over. Where you no longer have control over where now a judge is gonna is gonna chime in that I personally find that very scary and sometimes though you have to, especially if there's been any accusations of sometimes domestic violence. You know those two people are never going to agree. There might even be a domestic violence protection order saying they can't even talk or see each other.

I personally find that very scary. And sometimes, though, you have to, especially if there's been any accusations of sometimes domestic violence, you know those two people are never gonna agree. There might even be a domestic violence protection order saying they can't even talk or see each other. So sometimes there are situations where, you know, it sucks that it's so contentious because the courtroom is not fun for people. I mean, other than us, we're lawyers, but everybody else is not fun for.

We're having a blast in there. Yeah, but, I mean, sometimes it's- Litigation's expensive, too. Yeah.

Right, I mean, that's the other thing to think of. You know, a divorce, you know, a simple divorce may cost this, a separation agreement may cost this per hour. Litigation, real, we're going to trial litigation is not cheap. And it's unpredictable. And it's time consuming.

Exactly. Because everybody assumes you file and you're gonna be in court in a month. No, you could not be in court for six months to a year because there's discovery going back and forth. People have made motions about psychological evaluations. There could be several other things going on before a judge even hears the merits of the case. All very good reasons, if you're in this situation, you know, we hope all of our listeners are not having to worry about this kind of thing in their life, but if you're in this situation, even if it's not us, I hope you would call Whitaker and Hamer, even if it's not us, it is 100% worth your time to consult with an attorney that you trust, an attorney that you know is knowledgeable. Don't go consult with me, Josh, the real estate attorney about your divorce, I'm not gonna be very helpful. But you can call us and consult with Taylor who will be very helpful to you.

But it's something you don't want to underestimate the importance of. The Outlaw Liars, Josh Whitaker and Joe Hamer and our special guest, Taylor Scruggs-Smith, also an attorney at Whitaker and Hamer. We're gonna take a short break, come back and we'll wrap up this program. But if you've got a legal situation that you're facing and you've got questions, maybe this divorce issue is hitting home with you and you need some answers, here's the number. 800-659-1186, that's 800-659-1186.

Leave your contact information, read through what the call is about and an attorney with Whitaker and Hamer will be in touch. They have offices in Raleigh, Garner, Clayton, Goldsboro, Fuquay-Varina and Gastonia. Call them the Starbucks of the legal world.

They're everywhere. So get in touch if you have a question. You can also email the show, questions at theoutlawlawyers.com. Back there. Welcome back in to the Outlaw Lawyer. Josh Whitaker and Joe Hamer.

Again, Whitaker and Hamer Law Firm, managing partners there. Our special guest is Taylor Scruggs-Smith. We have a little bit of time, so let's get right to it. How are we wrapping it up?

You know, I want to take a second. We don't have any more listener questions. We've done our three listener questions, we're all done. But one thing I want you to know is that we have a lot of questions that you can ask. We have a lot of questions that you can ask. We have a lot of questions that you can ask.

Our three listener questions, we're all done. But one thing I want you to get out there, and it's not necessarily legal, we see it a lot because we do a lot of real, we handle a lot of real estate transactions, right? So if you're buying a house, if you're getting a refinance, you're selling a house, that's something our firm, need an attorney to help you, that's something our firm does a lot of. And so we kind of really plugged into the real estate market as a result, and right now it's bananas. I know we saw, there was a viral video, I know it was on our, we used it on social media, we shared it too, but there was a viral video that kind of went nationwide. A local real estate agent here in town that we work with took a video of everybody lining up down the street to look at a house that was on the market, a good-sized house, 260, 250. About 260, so in that range of what most firsts...

Which is way different than 250 or 260 was, like even two, three years ago. Right, so right now I think the average in Wake County, I think the register of deeds, when he updated the average sell in Wake County was about 420, so we're in Wake County, this house is kind of under the median value right now, which changes every 30 seconds what the median value is. So this was what I would call an affordable house. And that's a unicorn.

Yeah. It's like a first-time home buyer market range is like under that 300,000 mark, and that video was so crazy and it went so viral so quick. There were people lined up to look at this house, and it was just down the street. It looked like the fair was in town or something. It was just all these people were coming to look at this unicorn of a house.

And so we have another... Any tailgating going on? It might have been, it might have been. And so they've updated and said that that house actually went for 70K over asking price. So 200, we'll say it was 250, because we don't know exactly what it was, but it was in that range. So a $250,000 house, tons of people looking at it. The offer that was accepted by the sellers that closed appears to be, from the report that we saw, no inside knowledge here, 70 grand over the asking price. So this house that was put on the market for 250 sold for 320. Which will never appraise, so it's gotta be a cash deal, correct? Well, I think the way it works is the buyer might have to have been ready to put extra cash in. Yeah, the appraisal doesn't necessarily... Yeah, so if your loan requires you to put 10% down and it only appraised for 300, then you're just stuck with an extra.

And that's a commonality. In today's market, just because of the ridiculous prices that we see. Well, I saw, and I don't know what the daily numbers are, but Wake County, we're coming to a point where we're close to being under 500 active listings on the market at a time, where normally 10 to 15,000 would be normal.

You know, we'd be just ticking down, ticking down. And Taylor, you went through this too, because you just went hunting for a house. Yes, I just finally closed, thank goodness. But, oh my, like being a buyer out there in that market right now is crazy. Sellers are asking for like 30,000 in due diligence. And that's just to have the time to inspect the property for yourself, not to say you're actually gonna close on it. And that's one of those things where we could do an in-depth deep dive on just the concept of due diligence, but that's not like something that you're likely to get back in the absence of like a very narrow set of circumstances. And there's people who are doing that, $50,000 of due diligence.

Fight unseen, you know? It's just because it's desperation. And it's a lot of sight unseen offers getting accepted right now. I know when I was doing my search, a property would say that, you know, they could start an open house on Friday. By Friday, or no, by Thursday night, they're already telling everybody the house has already been like sold, and they've already accepted an offer, don't come.

So it's like before you even can go look, they're already selling it. I was just gonna say, and with the growth in the area, with everybody, all these companies moving in, I mean, it's not gonna change. I mean, we're in a bubble where this is gonna be kind of the normal. And you can argue about, you know, are we going into a recession? You can make all these national arguments on where the economy's headed and what it's doing, but on the ground here, man, the real estate market is just, but it's just crazy. And it's gonna be crazy for a long time. I don't think a recession necessarily, interest rates are going up.

I don't know if that necessarily changes anything. Because there's just no supply. We have a lot of demand. And no supply.

And very little supply. I think even on the appraisal for the property I ended up purchasing, they had to make an adjustment for the aggregate market on the appraisal. Like it's written on your appraisal, like this is what this would normally be, but because of this crazy world right now, this is what it is. It's presenting a lot of legal questions. You know, we're talking about the real estate market in general, we're attorneys, but you know, you're talking about due diligence. You know, people are offering a lot of due diligence, sight unseen, braving repairs. Yeah, letting the seller stay in the, you know, there's all these things going on because it's, I don't know that, I've never seen a stronger seller market than what we're seeing now.

It's very easy. Should be very, very easy to sell a house. Yeah, anything you got you wanted to sell, you could probably sell it. Now buying on the back end, that's the problem? Yeah. Yeah, well you just live in the streets with your money.

Just take your money, put it in a bag, put it on the streets, man. But anyway, I'm glad we got to tackle a lot of listener questions today. We're gonna have to do more of these listener questions.

Yeah, a lot of fun and big treat having Taylor Scruggs Smith on with us today. Outlaw lawyers, we've got another episode in the books. You can get in touch. If you have a legal question, you can call 800-659-1186. That's 800-659-1186.

Leave your contact information, briefly what the call's about. An attorney with Whitaker and Hamer will be in touch. You can also email the program questions at theoutlawlawyer.com. For Joe Hamer, Josh Whitaker, and of course our guest, Taylor Scruggs Smith, I'm Morgan Patrick.

And that's a wrap. ["Outlaw Lawyer"] Outlaw Lawyer is hosted by an attorney licensed to practice law in North Carolina. Some of the guests appearing on the show may be licensed North Carolina attorneys. Discussion of the show is meant to be general in nature and in no way should the discussion be interpreted as legal advice. Legal advice can only be rendered once an attorney, licensed in the state in which you live, had the opportunity to discuss the facts of your case with you. The attorneys appearing on the show are speaking in generalities about the law in North Carolina and how these laws affect the average North Carolinian. If you have any questions about the content of the show, contact us directly.
Whisper: medium.en / 2023-05-09 16:06:42 / 2023-05-09 16:32:38 / 26

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