Attaining a divorce in North Carolina may seem overwhelming at first, but the process follows well-structured steps and understandable legal principles. To help you comprehend the divorce process, the relevant laws and procedures, and understand what your requirements are, below is some important information.
North Carolina Divorce Requirements
To be able to file for divorce in North Carolina, a number of requirements need to be met. For starters, either you or your spouse must currently live in the state and must have lived in the state for at least six months prior. Which state you were married in is not relevant.
Couples also must show they have been separated for at least one year and one day. To be considered separated in North Carolina, couples must live in separate homes and at least one of them must have intended for their time apart to be permanent.
To begin the divorce process, one spouse needs to submit a complaint to the court stating the facts of the matter and why they want a divorce. If they are planning on applying for spousal support or property distribution, these requests—and their relevant facts—must be included.
Types of Divorce and Separation in North Carolina
North Carolina is one of a number of strictly “no-fault” divorce states, meaning that neither party is considered to be at fault for the marriage’s breakdown. There are only two types of grounds for divorce, as defined below:
- Separation: Both parties have been separated for at least a year, with one of spouses intending it to be a permanent separation.
- Incurable insanity: One spouse is deemed to be insane by a judge or is institutionalized, and the parties must have been separated for at least three years due to the mental health condition. Two speciality doctors must also testify that the spouse with the condition is “incurably insane”.
Couples can opt for either a contested or uncontested divorce, depending on their circumstances. An uncontested divorce occurs when both parties agree on all issues, whereas a contested divorce involves disagreement and typically requires a court hearing.
Child Custody, Support and Visitation in North Carolina
As with every other state besides Massachusetts, North Carolina’s child custody laws follow the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), which allows for joint visitation, grandparent visitation rights and taking the wishes of the child into consideration when determining where they will stay after a divorce. A judge will also take into account numerous other factors including:
- Domestic violence history
- Child’s safety
- Child’s relationship with each parent
- Each parent’s ability to care for the child
Child support is a separate issue, and parents have a number of different options—some more adversarial than others—as shown below. Any child under the age of 18 must be financially supported by a parent, unless their parental rights have been terminated.
- Agreed amount: Parents can agree on a specific amount to pay to the child in a separation agreement.
- Voluntary support: Parents, along with a judge, can sign a voluntary support agreement (VSA) outlining how the child will be financially cared for.
- Child Support Enforcement Agency (CSE): Financial support can be arranged through the CSE, now known as Child Support Services.
- Civil claim. The individual requiring child support can file a civil complaint to ensure child support is received.
Property Division in North Carolina
After a spouse has requested that marital property (property obtained or acquired during the marriage) to be divided by the courts, if the parties cannot agree, a judge will divide marital assets according to a number of different factors. TAny property acquired prior to the marriage is separate property and may not be divided between spouses.
For example, if one spouse purchased a car before they were married, and they are the sole registered owner, that asset is considered non-marital property. If a vehicle was purchased during the marriage, that would likely be considered marital property.
When deciding how to equitably divide assets, a judge will not necessarily split assets evenly but will review a number of factors. These may include:
- The income of each spouse
- The duration of the marriage
- The needs of each spouse, including whether they are paying child support
- How liquid or illiquid the couple’s assets are
Alimony, or spousal support, does not follow a specific formula in North Carolina. Typically, when a spousal support claim is brought before a judge, they assess the facts to determine how much support is appropriate–if any. That said, a spouse who is financially dependent upon their spouse and in need of financial support is entitled to alimony.
Filing and Serving Your Divorce Papers
To file for divorce, you likely need to file the following forms with your clerk of court of your relevant county, though your circumstances may warrant different documents:
The North Carolina Equal Access to Justice Commissionl has a free Divorce Packet that contains all of the necessary documents for an absolute divorce. Note, however, that these documents assume you will not be filing for child custody, alimony or equitable distribution of property. If you have questions about these forms, it is best to contact a divorce attorney.
Once the correct forms have been completed, the complaint and summons need to be served on your spouse. You can pay a fee to have a sheriff serve the documents or send them via certified mail, FedEx or UPS. Simply giving the documents to your spouse does not count as legal service. If your spouse agrees to the documents, they can sign an Acceptance of Service, which completes the service process. If you cannot locate your spouse, you may have the option of publishing the documents in a newspaper—certain stipulations may apply.
Finalizing Your Divorce
After all documents have been completed and your spouse has been served, there is a 30-day waiting period allowing your spouse to respond. If they respond by filling out an Answer or Waiver and Answer or do not respond within the 30 day period, you can then go to court for a final hearing.
At the hearing, you are required to bring a completed Judgment for Absolute Divorce and Certificate for Absolute Divorce to the judge. You will also be asked to provide your testimony proving that you followed the required divorce process and meet the requirements for a legal divorce. Usually, if everything was done correctly, the judge will approve the divorce the same day.
If your spouse does respond, then your case will proceed to a trial, unless you can reach a settlement before your trial date.