If you are filing for divorce in North Carolina, you need to prepare yourself with as much information as possible about the laws, how they work and what to expect. From getting separated and finding an attorney to appearing in court and coming to agreements about the property, child support, and alimony, there is a lot to consider throughout the process. “Absolute divorce,” also known as a “no-fault divorce,” is the common term used for divorces in North Carolina.
You have to be separated for a minimum of 1 year (plus 1 day)
To begin with, if you want to get a divorce in North Carolina, you must be separated for a minimum of one year and a day. “Separated” means you and your spouse live in separate homes and at least one of you intends the separation be permanent. In addition, you or your spouse must live in North Carolina and must have been a resident for a minimum of six months before filing for divorce. You can prove your separation by testifying under oath, provide a copy of a separation agreement or by presenting other documents and witnesses.
NC is a no-fault state
Since North Carolina is a “no-fault” divorce state, you don't have to show fault or reasons other than incompatibility or irreconcilable differences. So even if you prove fault, you still have to abide by the separation factor before filing for divorce. Also, your spouse doesn't have to agree to the divorce, sign any documents or even go to court. The only requirement is that your spouse must receive proper legal notification of the filing.
The only exception to the separation requirement for divorce in North Carolina is filing for a divorce based on incurable sanity. Getting a divorce based on incurable insanity requires a minimum three-year separation and requires a professional diagnosis of the spouse’s insanity. Divorce based on incurable sanity is seldom filed because of the much shorter time frame of the separation requirement.
How to file for divorce in North Carolina
To file for divorce in North Carolina, you have to file with the clerk of court in the county where you or your spouse live. These are the documents required:
- A divorce complaint. There are two parts to a standard divorce complaint. First, you should outline the basic facts such as names, ages and other information about both parties and any children of the marriage. You should include information about assets and debts and note when and where the marriage took place. Second, you should outline the types of relief you are seeking, such as child support, spousal support, the division of property, custody, etc. The divorce complaint should also include the reasons or grounds for wanting a divorce, such as irreconcilable differences.
- A summons for ensuring that your spouse is legally notified. In North Carolina, your spouse will have 30 days to respond, and can also petition for an extension that will grant them an additional 30 days.
- A Domestic Civil Action Cover Sheet
- An affidavit regarding the Service Members Civil Relief Act (SCRA), notifying the court whether or not your spouse is in the military. This form is intended to protect the legal rights of active-duty service members.
Gotta pay the court fee
You must pay the court filing fee when you file the divorce complaint, and if you can't afford it, you can apply to file as an indigent. After your North Carolina divorce filing, you must make sure your spouse is served with a copy of the summons and complaint. You must either pay a fee to have the sheriff serve your spouse or send the documents to your spouse via certified mail, FedEx or UPS.
If you mail the documents, you must show proof to the court that your spouse received the documents. If you can't locate your spouse, you may be able to serve him or her by newspaper publication, but you will probably be required to return a copy of the newspaper notice and a statement about how long the ad ran to the court.
North Carolina Divorce: Property division and spousal/child support
If neither spouse files for property division by filing a claim for “equitable distribution” before the absolute divorce is final, both parties lose the right to ask a court for a property division. In this situation, you keep only the assets that are either titled in your name or in your possession and the same holds true for your spouse. If you own any property in both names, this property will stay in both names even though you have divorced. These same rules apply to debts.
When neither spouse files for spousal support before the absolute divorce is final, both spouses lose the right to ask the court for alimony. Because a divorce permanently dissolves any rights to equitable distribution and alimony, it's important to contact a divorce attorney to help you negotiate any distribution of assets and the terms of an alimony agreement.
Child custody claims (these are separate)
Child custody and child support claims are separate from divorce claims. Parents, regardless of marital status, can file at any point for custody of children under the age of 18. Similarly, parents can file at any point for child support for children under 18, or under the age of 20 if the child is still in high school, regardless of marital status. You can find out more about custody and child support to help you figure out these issues before going to court. Just keep in mind that they are distinctly different legal actions from divorce claims.
What to expect at a North Carolina divorce hearing
You have to schedule a hearing for your North Carolina divorce before a judge to receive the divorce. Simple divorce hearings, those without division of property, etc., are usually quick and straightforward. At your hearing, you will testify under oath to show you are eligible to get divorced, and in most circumstances, you will leave the court with a copy of your divorce judgment. Keep in mind that custody, property division, and other litigation should be settled out of court whenever possible.
There are four elements of your divorce that will need to be addressed in divorce court:
- Child custody and visitation: This will include who the children will live with and the visitation rights of the other spouse.
- Child support: This element is simply a declaration of how much financial responsibility the non-custodian parent has for the upkeep of children by the parent with custody.
- Alimony: This element includes how much a lower-income spouse should receive in alimony from the higher-earning spouse.
- Division of property: Property, assets, and debts are all elements of a marriage that must be divided fairly.
Divorce in North Carolina and equitable distribution
Equitable distribution is a legal process for property division, in which a spouse can ask the court for assistance in dividing the assets and debts acquired during the marriage. In North Carolina, marital property can be divided between spouses, while the separate property remains with the specific spouse. Assets or debts either spouse acquired before the marriage are considered separate property and aren't subject to any property division. However, a spouse may lay claim to an asset based on any increases in value during the marriage.
Assets and debts acquired during the marriage are usually classified as marital property with the exception of some inheritances and gifts that one spouse received from a third party during the marriage. A third category, called divisible property, applies to property acquired, any property that increases in value, or property that is sold between the date of the separation and the date of property distribution. You can file a complaint requesting equitable distribution, in which you may also include other requests, such as alimony, child custody, child support, and more.
If your spouse files a complaint against you, you can file your claims when you respond to the divorce filing. There is no standard form to file for equitable distribution, and the process can often be complicated. Some counties and districts have specific rules regarding property distribution and other elements of a divorce settlement, so you should get in touch with a divorce lawyer to help you navigate this area.
North Carolina divorce laws presume that an equal (50/50) division of marital property is equitable and fair. However, there are many factors that would create an unequal distribution of property and debt. If either spouse requests and provides evidence as to why an unequal division should be considered, the court may give more of the property or debt to one spouse than the other.
Judges consider many factors in deciding how to divide property and debt in a divorce, including current and potential income, the property in question, debts of both spouses and more. While marital misconduct is not a determining factor in equitable distribution, it can be in cases of financial misconduct after separation. You can learn more about property division and the factors that affect distribution here.
Alimony in a North Carolina divorce
Alimony is support paid by one spouse to the other beginning with the enactment of the divorce settlement. Dependent spouses, a spouse who is financially dependent on support from their spouse, are entitled to receive alimony from supporting spouses. There are no standard formulas in North Carolina law to determine how much alimony a dependent spouse should receive from the supporting spouse. Instead, the judge determines how much alimony is fair after reviewing the facts of the case.
How long alimony should last
There are also no standard guidelines in North Carolina divorce law to determine how long alimony should last. Again, the judge decides this depending on the facts of the case. Regardless of the alimony period initially set by the judge, alimony ends if the dependent spouse remarries or moves in with a new partner, or if one of the parties dies (please don't get any stupid ideas). By law, the court must consider many factors in deciding whether to grant alimony, including current earnings and potential earnings. Ages, education, and the health of both spouses, length of the marriage, misconduct, and other factors are also considered.
Illicit sexual behavior
North Carolina divorce law also considers “illicit sexual behavior” as a determining factor regarding alimony. A dependent spouse who has cheated on the supporting spouse before separation typically loses any rights to alimony. A supporting spouse who cheated on the dependent spouse before separation will typically be forced to pay alimony by default. If both parties cheated before the separation, the judge has the discretion to decide whether to order alimony or not.
Even in the event of cheating, there are still other factors that may be taken into consideration, such as marital misconduct, abandonment, cruelty, alcohol and drug abuse and others.
If your divorce is simple, you can DIY it. If there is some level of complication, find a good lawyer
Unless the divorce is uncontested and both spouses come to agreements regarding children, alimony, and the other elements discussed above, you should consider finding a divorce lawyer. An experienced divorce attorney can make sure your rights are protected and ensure both parties get a fair divorce settlement.