Divorce and Separation....
Because society has an interest in the formation of families
and the successful rearing of children, laws have been enacted
governing the rights of men and women not only to enter into
marriage but also to dissolve marriages.
The terms, Separation and Divorce, have clear legal meanings
in North Carolina, and anyone considering either step
should realize that in addition to the profound emotion stirred
by the breakup of a marriage there are important legal matters
which must be taken into consideration.
The purpose of this page is to provide general information
about separation and divorce. Because the dissolution of a
marriage is a serious legal matter, a person entering into or
already involved in the breakup of a marriage should have
competent legal advice from an attorney.
Can I File for Divorce?
There are now only two grounds for divorce in North
Carolina. All fault grounds have been abolished.
1. Separation for One Year
If a husband and wife have separated with the intent of
ending their marital relationship and have lived separate
and apart for one year without resuming their marital
relationship, either may file for divorce, provided one of the
parties has been a resident of the state for at least six months.
Spouses living in the same house are not living separate and
apart. Whether there has been a resumption of the marital
relationship during the separation period will be determined
by all of the circumstances. Isolated incidents of
sexual intercourse during the separation period will not
be considered a resumption of the marital relationship.
2. Incurable Insanity
Where a husband and wife have lived separate and
apart for three years because of the incurable insanity of
one of them, the sane spouse may petition for divorce.
Annulments
Unlike a divorce that dissolves a valid marriage, an
annulment is a legal decree that a marriage never occurred.
Annulments are rare and only granted in unusual
circumstances. For example: a marriage between two
persons, one of whom is legally married to another, is
bigamous and void and can be annulled by court action.
What Should I Do After
My Spouse and I Have Separated with
The Intention of Divorcing?
Long before the year expires, you should try to resolve the
questions of alimony, child custody, child support and
division of property. These are complicated questions which
should require the advice of counsel. If you and your spouse
can agree on the resolution of the issues, a separation and
property settlement agreement is an effective tool. To be
valid, a separation agreement must be in writing and meet
certain other requirements. If you cannot agree, you may
need to seek assistance from the courts.
Temporary Decisions
The proper court can, if necessary, make temporary
decisions about:
• Custody of minor children.
• Restraints to keep your spouse from interfering with your
personal liberty.
• Who will live in the home you and your spouse once shared.
• Support payments for a spouse or children.
• Limitations of disposal of property to ensure payments
of support or to protect a spouse’s share in that property.
• Allocation of the ownership, possession and/or use of
certain property.
• Visitation rights to the spouse who does not have physical
custody of the children.
• Other temporary orders authorized by law.
How is a Divorce Started?
A formal document, called a Complaint, is filed with
the appropriate court. This includes information on the
marriage, residency, present living arrangements, children
of the marriage, and the specific ground claimed for seeking
divorce (e.g., one-year separation). A copy of the complaint
must be lawfully served on the other spouse (usually by
sheriff’s delivery or certified mail return receipt requested).
What Do I Do When My Spouse
Files for Divorce?
You should consult a lawyer promptly for advice. You
may lose rights if you do not act to protect them. You may
contest the reason claimed for the divorce, or you may
contest (or need to counter-sue for) child custody, support,
post-separation support, alimony and/or property division
by filing the proper papers and appearing in court.
The case will be decided without your appearance if
you do not contest any portion of the complaint and if you
do not wish to say anything to the judge. However, you
will be bound by the judge's decision, whether or not you
appear. Failure to follow court orders could result in a
citation for contempt of court. Claims for equitable distribution
(property division) and alimony must be made before a
divorce judgment is entered or these rights are lost. You may
wish to contest or ask for equitable distribution and/or
alimony and you must file legal pleadings to do so.
Whether or not you contest any part of the divorce, you
may wish to consult an attorney immediately for professional
advice on legal problems, the choices you can make, and the
consequences of your actions or your failure to take action.
Custody of the Children*
The welfare of minor children is of major concern to the
courts. Property rights and welfare of the adults involved
are secondary. Neither parent is automatically entitled to
custody of any child. The judge may consider many
factors in deciding what custody arrangement is best.
Alimony and Child Support*
Post-separation support and alimony are spousal support.
In North Carolina, a spouse who can establish financial
dependency may be entitled to alimony from the other
spouse. While the most important facts on alimony are
financial, the judge can also consider misconduct that
occurred before the spouses separated in deciding questions
about alimony. Because of the many facts that are
relevant to whether a spouse gets alimony and how much
the spouse should receive, you should consult an attorney
with your questions. You forfeit your claim for alimony if
you have not put it forward before a divorce is granted.
North Carolina law requires both parents to assume
financial responsibility for their children, and if the parents
cannot reach an agreement on child support, the
presiding judge will make the decision, based primarily
on evidence of both parents' income. Either spouse may
claim child support in the divorce action.
Division of Property—
Equitable Distribution
State law now declares that all property, including real
estate and some pensions, accumulated during the marriage
by the parties’ efforts (exclusive of gifts and inheritances)
shall be divided equitably between the parties,
regardless of which party holds title or ownership to that
property. The division of property will be equitable, which
is not necessarily equal.
Parties may resolve property questions by entering into
a written agreement at any time before or during separation.
However, if property questions are not settled by
written agreement, a claim for equitable distribution must
be filed with the court prior to the granting of a divorce or
rights to an equitable distribution of property will be
forfeited. You should consult an attorney about these very
important and complex property issues. If the parties
cannot agree upon the division of property, the law provides
the means of bringing the issue before the court,
which will divide all of the property in such manner as it
finds to be equitable.
Name Change
A woman who is divorcing her husband may resume
her maiden name or the name of a prior husband by
requesting this change in the divorce proceedings. A
woman may not resume the prior married name of a
former husband who is living at the time of her subsequent divorce, unless children were born to the marriage
to the prior husband. If she wishes to resume her maiden
name at some date before or after the divorce settlement,
she must petition the court for the restoration of her name.
How Long Does it Take
To Get a Divorce?
The time needed to complete a divorce action depends
upon many factors, including the degree to which you and
your spouse may have agreed on many matters and the
backlog of cases in your county. You cannot file a request
for divorce until you and your spouse have lived separate
and apart for one year.
If both spouses have agreed on all aspects of the divorce,
and if grounds for the divorce exist, a judgment of divorce
will usually take two months or more after the divorce
complaint is filed. If aspects are contested, a final decision
may take a much longer period of time.
When is a Divorce Final?
A divorce is granted when the judge issues a judgment,
declaring that the marriage has ended under the laws of
North Carolina. After the divorce is final, changes in some
arrangements (custody, visitation rights, amounts of support,
etc.) may be reconsidered if either party can demonstrate
changed situations to a judge.
Tax Caution
Whether established by a court order or by a written
agreement between the parties, decisions about the following
issues may result in serious tax consequences to both
parties:
• Alimony or support payments.
• A division of property.
• Dependency exemptions and child care credits.
• Tax filing status.
You should consult a lawyer concerning these issues.
