What's Yours is Mine, and What's Mine is Mine
As Family Law attorneys we frequently see clients who come in with this mindset: "I want what I brought into the marriage, and I want almost everything we earned and purchased during the marriage, and I do not want to be responsible for our debts." After what is often times a hostile separation from their spouse, clients become overwhelmed with what will happen with their money, their assets, and their debts. Many people hear horror stories from their best friend who went through a divorce last year who "didn't get anything in the divorce," so when they come into our office, they want to be assured that we, as their attorneys, can get them essentially everything. As you can imagine, this is a bit of an unrealistic mindset to have, even if your attorney is the best in the state.
One of the most important jobs of a divorce attorney is to manage their client's expectations based upon the relevant law. This means that the most important job for the client, aside from taking care of their family, is to be reasonable in what they expect out of their divorce. The North Carolina statutes and case law regarding Equitable Distribution (the process for dividing assets and debts prior to divorce) are fairly straight forward. North Carolina considers an equal split of the assets and debts earned and incurred during the marriage to be equitable. There are some circumstances where the Court will award an unequal distribution of the marital estate; the statutes list factors that the Court may consider in awarding an unequal distribution of the estate, and it is your attorney's job to present evidence of those relevant factors to the Court on your behalf. Many people believe that if their spouse cheated on them, then they should get more of the marital assets; however, the State of North Carolina does not consider marital misconduct in deciding how to divide the marital estate. An affair can and likely will be considered in making alimony awards, but will have no bearing on the Equitable Distribution issue of your case.
Additionally, prior to ever seeing a Courtroom regarding Equitable Distribution issues, the State of North Carolina requires you to attend mediation. The hope is that you, your attorney, and your spouse, and his/her attorney can come to an agreement regarding the distribution of your assets and debts with the help of a mediator. This is beneficial to you because it will save you a lot of time and money by not having to go to Court on this issue, which often times involves a multi-day trial. Additionally, by settling the issue in mediation, you get to keep some of the power of having a "say-so" in the distribution, whereas if you go to Court, the decision is solely the judge's.
We often have clients who feel that settling the Equitable Distribution issue in mediation is a "loss," and they would rather wait to go to Court and "win." Again, this is a terrible misconception. Your attorney will not allow you to settle in mediation unless they believe that the settlement is in your best interest. This is where trusting your attorney is essential. Your attorney has experience and will be able to balance the cost of going to Court with the benefits and deficits of the offer presented to you at mediation. If the offer is a good one, your attorney will likely explain that you will be rolling the dice by going to Court versus accepting the offer. Settling the Equitable Distribution issue in mediation, when the offer is fair, is not a loss, it will likely end up being a win for you because the cost to go to Court can be immense. You save on this cost by settling the issue early on in mediation, and you get to use that money in a way that benefits you and your family, as opposed to using the money to pay your attorney to go in front of the judge and have the judge decide the fate of the distribution of your marital estate without your input. Ask yourself if fighting to win the pots and pans is worth the money you will have to pay your attorney to go to Court and fight over them; if the answer is no, then settle, and buy yourself a nice new set of pots and pans with the money you saved. Try not to get bogged down in the "I want to win it all," and keep asking yourself, "is this reasonable."
It is also important to keep in mind that when you have minor children, issues of child custody and child support will always be made priority with the Court, so it can take several months, sometimes longer, to address your Equitable Distribution issue. It is important to go into the process with patience, and again, trust in your attorney to steer you through the process. Most importantly, keep in mind that issues such as Equitable Distribution, Post Separation Support, and Alimony must be filed for with the Court prior to your divorce being complete, or you waive the right to make those claims, so make sure to address all of these issues with your attorney in your initial consultation. Remember, keep in mind throughout the Equitable Distribution process that although emotions are running high and you feel entitled to the bulk of your marital estate, your attorney will certainly present any relevant evidence in an attempt to get your more than half of the marital estate, but unless the factors weigh in your favor, the State of North Carolina considers equal to be equitable. So instead of thinking: "what's yours is mine, and whats mine is mine," try to remember that being reasonable and being patient will get you far in the process, and your attorney has your best interest at heart to get you everything that you are legally entitled to.