Requirements necessary to file for divorce
If you are seeking a divorce due to a fault by your spouse, you must prove confirm that you and your spouse have lived apart for at least 12 months; or that your spouse is incurably insane and you have lived apart for at least 3 years.
It is not sufficient to live in separate bedrooms for one year. You must have lived in separate residences and not engaged in sexual intercourse for at least one year.
Under North Carolina divorce laws, at least one spouse must have lived in the state for at least six months prior to filing for divorce.
Before you move out of your marital home in anticipation of a divorce, you should discuss your situation with an attorney.
Grounds for divorce in North Carolina
Unlike other states, North Carolina divorce laws only requires that you have lived in separate residences and not engaged in sexual relations for at least 12 months to demonstrate worthiness of divorce.
The only other grounds for divorce in North Carolina is incurable insanity.
Step 1: How to start the divorce process
A divorce proceeding in North Carolina begins with the filing of a completed Complaint for Absolute Divorce with the Clerk of Court’s office in the county where you reside.
You must also provide the following documents
Domestic Civil Action Cover Sheet
Civil Summons
Make at least two copies of all submitted documents. You must file the Petition and supporting documents with the Clerk’s Office of the county court in the county of residence. You must also pay the appropriate fees at the time of filing; if you are not able to pay the fee, you should file a Petition to Sue/Appeal as an Indigent. If your request is approved by the court, your filing fees may be waived.
If you would like the court to judge on issues of alimony, property division or child custody, you must file a petition regarding those issues with the court before you file your Complaint for Absolute Divorce.
Step 2: Notify your spouse
Under North Carolina law, you must provide copies of all documents related to the divorce to your spouse.
In person—You must use the process service offered by your county sheriff to serve your divorce papers on your spouse. You cannot serve your spouse yourself. You must pay a fee for the process service or obtain a fee waiver from the court.
By mail—you may use certified or registered mail to serve your spouse, whether they live in or outside of the state. You must complete an Affidavit of Service of Process by Certified or Registered Mail when you get the return receipt, and get it notarized before you file it with the court.
If you are unable to reach your spouse, you may still be able to provide service of Divorce by Publication. You should only use this method if you do not know the location of your spouse and cannot find it. You must obtain approval from the court first and, upon approval, publish a notice in a local newspaper.
Once your spouse has been served, they must respond to the Petition within 30 days. These responses are classified as
Default
If your spouse does not provide any response to the divorce petition, then the judge will assume that the Respondent has abdicated any right to participate in the case. The judge will probably grant many or all of the requests by the petitioner regarding child custody, support and property distribution in the original Complaint. Following the judgment, you and your spouse are barred from making any additional property claims, although you both have the option to legally revisit issues regarding children.
Uncontested
If your spouse files a Response with the court but agrees with all of the details in the Complaint, this is considered an uncontested dissolution of marriage. You and your spouse must agree to a Marital Settlement which must be filed within 30 days of serving notice.
Contested
If your spouse files a complaint for equitable distribution, custody, or both which disputes various aspects of the Summons, then the court will likely have to step in and make decisions regarding contested issues. The court will issue summons to both parties to attend a hearing, which will identify disputed issues, and if you and your spouse cannot come to an agreement, you will proceed to a trial.
Step 3: Does your spouse agree?
Contested Divorce (High Cost)
If you and your spouse cannot agree on the major issues in how your marriage should be dissolved, you will probably need to hire an attorney to represent you in this complex divorce proceeding.
In contested divorce cases, you must attend a hearing where the judge will determine the format of the trial, including major issues litigated and what evidence is admissible.
Contested divorces typically involve attorneys for both parties.
Most divorce attorneys charge substantial legal fees in a contested divorce procedure due to the added time and effort of participating in a trial.
Attorneys are likely to engage in discovery where they will investigate you and your spouse’s claims. This long and costly process may include document requests, subpoenas and witness interviews.
Contested divorces may cost several thousands of dollars or more in court and attorney fees, depending upon the number and complexity of disputes.
Uncontested Divorce (Low Cost)
In North Carolina, there are low-cost alternatives to a contested divorce.
If you and your spouse settle your marital issues, you may submit to the court the following documents attesting to your final resolution:
After the papers are filed, the judge will schedule a final hearing, and Notice of Hearing must be provided to your spouse.
The judge will schedule a hearing to finalize the divorce at least 45 days following the initial filing.
In many cases, an uncontested divorce is considerably more inexpensive because there is no need to hire an attorney or complete a trial. Many people are capable of filling out the paperwork for an uncontested divorce without legal assistance.
Step 4: DIY or attorney assisted divorce?
Self-Representation (Lowest Cost)
If you and your spouse can agree to a settlement prior to going to trial, it will dramatically reduce the cost related to the divorce and minimize stress to you and your family. That is why you should do everything you can to resolve any major conflicts with your spouse prior to beginning the divorce process. MyDivorcePapers.com ($159)online service can offer guidance and the forms necessary to complete this process with minimal cost and effort.
Mediation (Medium Cost)
The state of North Carolina encourages couples who are considering a divorce to use mediation services. Mediators are independent, conflict resolution professionals with expertise in resolving personal issues. Although they may not have the legal authority to force a couple to remain married, mediators often produce compromises that minimize animosity and expedite the divorce process. a court may appoint or recommend a mediator prior to or during a divorce proceeding.
Divorce Trial (Highest Cost)
In cases where you and your spouse cannot agree on major issues, the judge will schedule a trial that could go on for several days.
Hiring a well-qualified divorce attorney to defend you is usually in your interest, as your spouse will probably do likewise.
In the discovery phase, both legal teams will investigate the allegations made by each party. This may take weeks or even months to complete.
At the trial, both sides will argue using evidence and testimony.
Even with highly experienced legal representation, there is no assurance of a successful outcome.
Step 5: Resolving the major issues
The major points of contention in most divorce cases involve issues of property division, child custody or spousal support. If you and your spouse fail to come to an agreement on these issues, you should know how North Carolina courts often rule. You should remember that you must file any claims regarding equitable distribution, alimony and child custody prior to filing for divorce.
Property Distribution
North Carolina bases its equitable distribution upon the principle of equitable division, which allocates property fairly but not necessarily equally. North Carolina courts prefer a 50/50 split but may consider many factors when dividing marital property (separate property is owned prior to the marriage and is usually not at dispute) including:
Age and health of each spouse
Liabilities and tax consequences
How much either spouse contributed to its acquisition
Income earning potential of both spouses
Custody of children
Alimony allocation
Fault by one spouse or the other is not a consideration in equitable distribution. Once the marital property and debts are identified, they are assigned a monetary value, usually by an independent appraiser; they will then be assigned to a party.
Child Custody
As in most states, North Carolina determines joint or sole child custody based on the best interests of the child. North Carolina courts distinguish between legal custody (right to make decisions about the child) and physical custody. The courts in North Carolina prefer to grant one parent physical custody and the other visitation privileges. The judge will consider many factors including:
Parent’s ability care for the child
Child’s preferences
Child’s safety
Relationship with parents
Child’s current living situation
Past instances of domestic violence
North Carolina does not grant preference based on parent’s gender, although many judges prefer to grant mothers physical custody especially if the child is very young. If one parent is granted sole custody, the court will decide the other parent’s visitation privileges.
Spousal Support
In North Carolina, spousal support is not mandatory and a judge may award it depending upon several factors:
Future earning capacity of both spouses
Each spouse’s age and health
Marital misconduct
Standard of living during the marriage
Ability to pay alimony
Length of the marriage
Tax and liability burdens
Equitable distribution
Education of each spouse
North Carolina does not have formal guidelines for determining who receives alimony or how much. Therefore, because the ultimate alimony arrangements can’t be determined beforehand, it is in your best interests to come to an agreement with your spouse about spousal support rather than going to trial. Alimony may be in the form of a lump sum or monthly installments.
Step 6: Finishing up your North Carolina divorce
If a trial is scheduled, then you and your spouse must go to trial to obtain a judgment on any unresolved issues. Following these courtroom proceedings, the judge will issue a judgment. If the divorce is uncontested, the court will decide to grant the divorce following a hearing. The judge will question you and your spouse to confirm the details of the divorce agreement.
After the trial or hearing, the judge will then issue a Judgment of Absolute Divorce and a Certificate of Absolute Divorce, finalizing the divorce. Once the judgment is issued, neither you nor your spouse may appeal any of the decrees regarding property division or alimony.