Katherine Langley

Divorce and Family Law

Divorce Does Not Have To Be a Disaster

The reality is, many marriages do not last forever. The end of a marriage is unavoidably painful and expensive, if only because what was one household must now become two. But divorce does not have to be an emotional or financial disaster. In fact, North Carolina law is pretty clear about how property will be split, custody shared, and child support calculated. It is rarely in anyone’s interest to wage war over these things, especially when children are involved, and the spouses need to be able to co-parent for another 5, 10, or 20 years.

Our Four-Step Approach

In addition to her years representing clients in Buncombe County’s Family Court, attorney Katherine Langley is a divorced parent herself. Her experience from both sides – of the process of putting together a new life and of the hassles of the court system – has led her to develop a four-step approach to separation and divorce that will save you and your spouse tens of thousands of dollars:

  1. Consult with a lawyer to get an honest assessment of what to expect, what your rights are, and what your spouse’s rights are;
  2. Meet with a family mediator (along with your spouse) to hash out the property division, child support payments (if any), and parenting plan;
  3. Return to your lawyer with the mediation notes to have a formal separation agreement drafted.
  4. Once the year-and-a-day of separation that NC requires is up, obtain a divorce either on your own or with the help of an attorney.

The Separation Agreement

A separation agreement done in this way is every bit as “legal” as an order entered by a court, and it has many advantages: It is faster, less expensive, and less painful than fighting it out in court; it allows for more flexibility and creativity than you are likely to get from a court order; and most importantly, it allows you to participate in the decisions that will govern how your family functions in the future, instead of allowing a third party (the court) to decide how your property will be split and your children parented.

A separation agreement can be signed as soon as you and your spouse have separated. One year after separation, either party can file for divorce. The money and the emotional energy saved can all go to helping everyone adjust to the new normal, and you and your spouse can continue to parent your children in a constructive manner.

When Litigation is Necessary

Of course, there are situations in which things cannot be resolved amicably, usually because one side has a distorted view of what they are entitled to or wants to make their spouse “pay” for something that happened during the marriage. If you find yourself in that position, using the court system is completely appropriate, and you and your lawyer will need to work hard and be thoroughly prepared every step of the way.

Divorce & Family Law FAQs

My spouse and I have been living in separate rooms in our house for the last three months and would like to divorce as quickly as possible. What is the earliest we can be divorced?

North Carolina requires spouses to live separate and apart for one year before they can be granted a divorce. Living in separate rooms in the same house does not qualify as living separate and apart. You and your spouse will need to establish separate residences and then wait one year. But this does not mean that progress cannot be made during this year, as the legal issues between you and your spouse, including property division, alimony, child custody, and child support, can be resolved by agreement prior to divorce. In fact, you can work out an agreement addressing all these legal issues as soon as one of you moves out of the marital home.

Do I need to have separation papers drawn up in order to be legally separated?

In North Carolina, you are legally separated as soon as you and your spouse are living under two separate roofs.  You do not have to sign or file anything in order to be legally separated.  But if you or your spouse want to buy real property before you are divorced, it is a good idea to get a separation agreement in place first.

My spouse and I have separated and would like to legally divide our property prior to divorcing. Is this possible?

Yes.  After you and your spouse have separated, you can work out how you want to divide your property, and this agreement will be set out in a Separation Agreement that you both sign.  Your signatures on this agreement must be notarized in order for it to be valid in North Carolina.  This is a binding agreement, just like any other contract.  Alternatively, either of you can file an action (a lawsuit) for Equitable Distribution (“ED”).   If your ED action makes it to trial, the judge will classify your property and make a determination as to how to distribute it between you.  Like any lawsuit, this is an expensive process that will require you to assemble all your financial records from the date of marriage forward.  The more you can prepare in advance for your lawyer, the better your lawyer will be able to advocate on your behalf.

Will my spouse get half of everything I own?

That depends on how the property is classified. In North Carolina, there are three categories of property—marital property, separate property, and divisible property.  Some assets may be mixed; for example, it is common for a retirement account to be both separate and marital property.

All property acquired after the date of marriage but before the date of separation is presumed to be marital property, no matter whose account it went into, or how the property was treated during the marriage. Marital property is presumed to be split equally between the spouses.

Separate property is anything that was acquired before the marriage or that was inherited or received as a gift during the marriage. Separate property belongs to the spouse who brought it into the marriage, or who inherited it.

The third category, divisible property, includes increases or decreases in the value of marital property after the date of separation but before the date the property is actually divided between the spouses.  It also includes property acquired after the date of separation but that was based on efforts during the marriage (for example, a purchase that was negotiated during the marriage but isn’t actually finalized until after the parties have separated).  Like marital property, divisible property is presumed to be split equally between the parties.

In some cases, marital and divisible property will be divided unequally.  This can be appropriate where one of the spouses has long term health problems or cares for a disabled child, to name just two examples.  It is up to the judge to decide whether an unequal distribution of the assets is appropriate in each case.

My spouse and I purchased a house during the marriage. It is our single biggest asset, but I would like to retain ownership if possible. What are the options?

A house that was purchased during the marriage is presumed to be a marital asset.  As a marital asset, an equal division of its value is presumed to be equitable.   One option is to sell the house and split the proceeds.  However, if one person wants to keep the house, that person will need to buy the spouse’s share of the house. This can be done by trading assets (for example, A gives up her right to B’s retirement account in exchange for the marital home), or by refinancing and using the proceeds to buy the spouse’s share.  When one spouse keeps the marital home, the other spouse will need to be removed from the mortgage.  This can be done through refinancing.

I started a business during the marriage that has been very successful. My spouse is a stay-at-home parent and does not work in the business. Is my spouse entitled to half the value of the business?

Yes.  The business is another example of marital property.  Because the business was started during the marriage, it is marital property and an equal division of its value as of the date of separation will be presumed to be fair.

During the marriage, I inherited $20,000 from my mother. I used the money to purchase the car that I currently drive. Is my spouse entitled to half of the value of the car?

Maybe.  In general, money or property that is inherited remains the separate property of the person who inherits it, even if the inheritance happens during the marriage.  But if the inherited property was “given” to the marriage, it becomes marital property.  This can happen when the inheritance is used to purchase something titled in both spouses’ names, such as real property or a vehicle. If the inherited property is kept separate, or used to purchase something that is only titled in the recipient’s name, it is separate property, and is not split at divorce.

I received a gift of $50,000 from my parents during the marriage. The gift was intended to be to me alone—not to me and my spouse. The $50,000 has remained in an interest-bearing bank account since the time I received it. Is my spouse entitled to half of the value of this gift?

No. This is another example of separate property.  Property acquired by a spouse during marriage by gift is considered separate property.   Unlike marital property, separate property is not subject to equitable distribution.

How will our assets be valued?

Marital assets are valued as of the date of separation.  For high-value items like homes, real property, works of art, jewelry, or a business, it is best to get an appraisal of the property as of the date of separation.  Of course, you and your spouse can agree to use a different method of valuation – the tax value, for example.  As long as you both agree, an alternative method of valuation is fine.

Ordinary household items are valued at fair market value; that is, the value the item could fetch on the open market, if it were sold on Craigslist or E-bay, for example.  Smaller items are valued at yard-sale value.

My ex wants to modify our child support agreement. Under the current schedule, I have our son one night per week. How will child support be calculated by the court?

The North Carolina Child Support Guidelines provide worksheets that produce child support calculations based on certain inputs.  Worksheet A is to be used when one parent has primary custody, meaning that parent has the child for 243 or more overnights per year.  For child support purposes, this is considered “primary custody”, but it does not change either parent’s legal custodial status – the number of overnights is important simply for deciding which worksheet to use.  In this case, you have your son for 52 overnights per year, so you will use Worksheet A.  Worksheet A will ask you for the number of children, monthly gross income, pre-existing child support payments, the number of other children, work related child care costs, health insurance premium costs, and extraordinary expenses.  Enter this information, and Worksheet A will give you the appropriate amount of child support.  If you have more than one child, enter the total number of overnights for each child.  For example, in this case, if you have two children who are with you one night per week, the number of overnights entered into the calculator would be 104.  (Click here to go to NC Child Support Worksheet A.)

If both parents have custody of the children for more than 123 nights per year, use Worksheet B to calculate child support.  (Click here to go to NC Child Support Worksheet B.)

Is my spouse entitled to a certain amount of alimony based on how long we have been married and our income? Is an award of indefinite alimony likely? Is there an alimony calculator like there is a child support calculator?

Although the court will consider income and the duration of the marriage—among other factors—in determining the amount, duration, and manner of alimony, the actual amount awarded is within the judge’s discretion.  There is no alimony calculator.  Alimony is usually limited to the period necessary for the dependent spouse to rehabilitate their earning capacity and is not ordered on an indefinite basis.

What is a “Collaborative Divorce”?

In North Carolina, a Collaborative Divorce is not exactly the same thing as an amicable divorce. A Collaborative Law proceeding is a creation of the North Carolina legislature, codified in Article 4 of the Divorce and Alimony chapter of the North Carolina General Statutes. In a collaborative proceeding, both spouses and their lawyers sign an agreement stating that neither side will file suit. If an agreement is not reached through the collaborative process, and a civil lawsuit is started, neither attorney is allowed to represent either party in court. In addition, any information gathered and exchanged during the collaborative process is inadmissible in a lawsuit. These provisions are designed to encourage spouses to stick with the negotiations; shouting “See you in court!” means that both sides have to start all over with hiring new lawyers, exchanging all the financial information again, and hiring new appraisers, child therapists, or other experts. Obviously, this makes the process much more expensive, and the idea is that no one would be crazy enough to go through all that work and expense a second time.

You can have a cooperative, amicable, negotiated resolution of your issues without using Collaborative Law procedures. Our approach favors negotiated settlements with a family mediator, to save costs. But if you and your spouse are not able to reach an agreement despite everyone’s best efforts, we want to be able to represent you in court later on, and we want to be able to use the appraisals and reports you have already paid for. The goal is to get the best result, at the lowest cost, in the least amount of time.


April M. Burt is a transactional lawyer. Katherine Langley and Chad Anderson are trial lawyers. These Asheville-based attorneys focus their practice in the areas of business law, employment law, estate planning, and transactional law. They serve clients in the Western North Carolina communities located in Buncombe, Henderson, Haywood, Madison, and surrounding counties.


Burt Langley, PC | 149 S. Lexington Avenue | Asheville, NC 28801 | P: 828-367-7090 | F: 828-318-8899