We spoke recently with attorney Jack E. Klass of Brinkley Walser. Klass, a former District Court Judge, joined Brinkley Walser in 2009 in an Of Counsel role. His practice focuses heavily on family law, including divorce, child custody, child support, and related issues. Klass is also a certified mediator/arbitrator. Here are excerpts from the interview: 
Q: I’m thinking about asking my spouse for a divorce. What are the steps to file in North Carolina?
A. In North Carolina you must be separated for one year before filing for divorce. A complaint for divorce is filed with the district court division in the county where either spouse is a resident. You should plan to speak to an attorney prior to leaving the marital home to make certain you do everything necessary to protect your rights. The exception, of course, would be in cases where you are in danger due to domestic violence. In that case, take the necessary steps to protect yourself and any children you have prior to speaking with an attorney.
Q: What if (s)he doesn’t want a divorce?
A. If the one year is up since your separation, then you may file for divorce. Your spouse may file an answer with the court stating why he or she doesn’t want it, but if you have been separated for one year without abandonment then you are entitled to a divorce in North Carolina. There might be other issues to deal with, like equitable distribution (i.e., property settlement), child support, or alimony; those are some of the things that will be reserved for later determination in the divorce judgment.
Q: How can I protect my credit and make sure I get my share of the property we own?
A. Very simple. That’s called equitable distribution in North Carolina, where each of the parties list everything they own together and separate, when they got it, whether they inherited it or whether it was a gift. I’ve even had them divide the toilet paper! If there are disputes, bank records, tax returns and receipts will be utilized by the courts. In an ideal situation, both parties will work together to ensure the bills are paid and neither suffers any damage to their credit reports.
Q: We did have a prenuptial agreement. Are those enforced in North Carolina?
A. Yes. Prenuptial Agreements are enforced in North Carolina unless at some time since the Prenuptial Agreement there have been other agreements that would void or change the terms of the original Prenuptial Agreement.
Q: Is there alimony in North Carolina? Would I get it?
A. Alimony in North Carolina before divorce is granted is called “post separation support,” which used to be called “alimony pendente lite.” After divorce, that is considered “permanent alimony.” The one who files for alimony must prove that the other party has substantial income and the party requesting alimony has no income and they must be in the financial position they were when they were married. If the husband was giving the wife $5,000 per month to live on during the separation period and neither of their financial situations has changed, then more than likely an equal amount would be awarded.
Q: How will the judge decide custody of our children? Child support?
A. The Judge will hear from all witnesses for the Plaintiff and Defendant. Usually the Judge hears all the bad things each one of them have done and how the other one has nurtured the children and loved them more. Ordinarily, the Judge will make the decision on the custody of the children as to what is in the best interest of the children, not the parents. We could go on and on discussing what each parent has done that might cause them not to be favored, however that is up to the Court. It is always in the best interests of the child if the parents can agree on an equitable arrangement prior to a Judge having to mandate custody terms. Child support will be based on the gross income of each parent according to guidelines set out in the law.
Q: Divorce is expensive. Is there some way I can keep the costs down?
A. Divorce can be expensive. There are methods to keep the costs down. Parties can agree to handle a divorce and related issues through alternative dispute resolution or “collaborative law” methods which essentially are non-adversarial and more like a negotiated settlement outside of court. Both parties must agree to put emotions aside and consent to this type of alternative dispute resolution. A lawyer is typically still involved but more to advise both parties of what the law is and to assist in drafting any necessary documents rather than to “advocate” for either side.
There is also an option to go to the Clerk of Court’s office and fill out a form that’s called a “pro se divorce.” While I was a Judge, I handled many of those. However, parties often didn’t have the proper Complaint, Summons or other documents needed. But if you go step by step it is possible to go to the Courthouse and get the necessary forms and file for your divorce and that would, of course, keep the costs down. A pro se divorce generally works best where there are limited marital assets and no children involved. If questions exist about the division of property, alimony or child custody, it would be wise to at least consult with an attorney before selecting which option works best for you.
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