What Constitutes a Separation in North Carolina
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Understanding Divorce Law in North Carolina
There are several divorce concepts and laws specific to North Carolina that you should know before you begin your divorce process:
North Carolina is a No-Fault Divorce State
No-fault means that neither you nor your spouse need to prove marital fault such as abusive behavior, adultery, economic fault, or addiction problems to obtain an absolute divorce in our state. You only need to establish that you and your spouse have lived apart for a least one year and that one of you has been a resident of the state for at least six months.
What is an Absolute Divorce in North Carolina?
“Absolute Divorce” is the legal term used in North Carolina to describe the dissolution of a marriage.
What are the steps for getting a divorce in North Carolina?
The decision to get a divorce is often a difficult one, particularly when children are involved. Here is what you need to consider and what you can expect:
Helpful resources when children are involved in a North Carolina divorce:
What are grounds for divorce in North Carolina?
North Carolina is a no-fault divorce state. The only grounds for divorce are that you and your spouse have lived apart for one year and that one of you has resided in North Carolina for six months prior to the filing of the divorce petition to the court.
Do I have to be separated before I can file for divorce in North Carolina?
Yes. You can file for divorce in North Carolina after you and your spouse have lived apart for one year. One of you must also have lived in North Carolina for at least six months before the date on your divorce petition to the court.
What forms do I need to file for a divorce in North Carolina?
To start a case for Absolute Divorce, you need to complete the following forms:
You may also need a Service Member Civil Relief Act Affidavit or if you cannot afford the court fees, a Petition to Proceed as an Indigent. Your attorney can help you with all of these forms.
How and where do I file a divorce complaint in North Carolina?
As the plaintiff, you file a divorce complaint with the Clerk of Court in the county where you live. The local county Sheriff must have jurisdiction to serve notice of divorce on the defendant, your spouse.
The complaint you file must contain a statement of fact to provide notice of the basis for the lawsuit, including a statement of where the party resides currently and in the past. The Sheriff will deliver the papers to the defendant and provide proof of service to the court.
After I file for divorce in North Carolina, do I have to continue to live in NC?
There is no requirement for either spouse to stay in North Carolina during the divorce proceedings, which can take weeks to months to reach completion. However, to file for divorce in North Carolina, one of you must have lived in NC for at least six months before filing.
Are there different divorce laws and considerations for military personnel?
To file for divorce in North Carolina, one of the spouses must have resided in NC for at least six months. If a spouse is a service member, he or she must still have residency in the state to file for divorce in the state. Being registered to vote in NC, having a NC driver’s license and/or paying state taxes help demonstrate permanent residency.
If the out-of-state service member is the defendant in a divorce proceeding and is overseas, there may be special considerations that waive the requirement to serve the defendant notice.
Also, under the Solider’s Civil Relief Act (SCRA), active-duty members of the U.S. military who are defendants in a divorce can request a stay of the proceedings while he or she is on duty for a period of time after returning home.
How long does it take to be granted a divorce by the court?
There is no set time. Each divorce is different and has factors that affect the length of time for the divorce to be official. There are contested, uncontested, simple, and collaborative divorces. And military divorces can have complications that take longer to settle, such as overseas service.
An uncontested divorce may be completed 45 to 90 days after a divorce complaint is initially filed. On the other hand, a divorce may take six months or longer if disputes need to be resolved or a spouse is uncooperative.
After one spouse files for divorce, the other spouse has 30 to 60 days to respond. If the spouse does not respond in time or does not dispute what you request in the divorce settlement, then you are free to move forward with setting a date for your divorce hearing. You may file a Notice of Divorce Hearing at least ten days before a date for the hearing and mail notice to your estranged spouse.
If there is a dispute between you, you can still schedule a hearing, but you will need to demonstrate that you have been separated for at least one year.
The factors that typically delay a divorce are: child custody and visitation, payments for child support and/or alimony, and agreeing on distribution of marital assets.
Will I receive alimony from my spouse, or might I need to provide alimony?
To obtain alimony (spousal support), one spouse must demonstrate that he or she has been dependent upon the other spouse for financial support. Alimony may be negotiated as recurrent payment or a lump sum as part of a divorce settlement.
If a spouse’s request for alimony goes before a judge, the judge will typically consider many factors, including:
- The length of the marriage
- Marital misconduct by either spouse
- Relative earnings and the earning potential of each spouse
- Accustomed standard of living
- The amount and sources of earned and unearned income of each spouse
- The contribution of one spouse to the other spouse’s earning power
- Assets and liabilities of each spouse
- Physical, mental, and emotional age and condition of each spouse
Can I change my name when my divorce is granted?
You can make your request for a name change part of your divorce petition to the judge. Changing your name as part of your divorce requires completing the section of a special proceeding form (Application/Notice of Resumption of Former Name) and filing with the Clerk of Superior Court in the county where you live. The fee varies from county to county but typically runs about $100.
Can I get an annulment in North Carolina?
An annulment is a court decree that voids a marriage as if it never happened. Yes, it is available in North Carolina, but it is a complicated legal process with particular requirements that must be met. An attorney can help support you through the process.
How much will a divorce cost me?
As of September 2020, the charge for filing a divorce case with a court in North Carolina is $225. It typically costs $30 to have a Sheriff serve the defendant with a divorce notice or $7 to serve the notice by certified mail.
The greatest expense will be your attorney’s fees which are charged at an hourly rate. Average fees in NC in 2020 ranged from $230 to $280, which are close to the national average rate for family lawyers. The number of hours it takes to handle your divorce will depend on the complexity of your case and whether or not it is contested.
Can my spouse and I use the same attorney?
No. One attorney cannot ethically represent both spouses in a divorce case. An attorney cannot be loyal to one spouse without doing a disservice to the other because each party has different interests. It is possible, however, for one attorney to represent one spouse and the other to go unrepresented. However, this is usually always a bad idea as one spouse has an advantage over the other.
If a couple is interested in saving money, the spouses may choose mediation which may still involve the services of an attorney but with less time involved.
Let’s look at the Grounds for divorce in greater detail
What constitutes separation for 1 year:
You can only file for an absolute divorce if you and your spouse have lived apart and separately for at least one year and at least one of you have lived in North Carolina for a minimum of six months.
To qualify for an absolute divorce, at least one spouse must have established residency in North Carolina for at least six months before filing for a divorce. Residency means having an actual physical presence in the state with the intent to remain in the state for an indefinite period of time.
What Does Separate and Apart Mean?
Living apart means living in different homes. Merely living in different bedrooms or different areas of the same home does not meet the required grounds for a divorce.
If you were to live apart from your spouse for five months, reconcile and then separate again, the five months spent apart may not count toward the separation period.
How is Reconciliation Defined?
It really depends on the circumstances. A one-time (isolated) reunion would likely not be deemed a reconciliation by the court. But multiple reunions may be. Presenting yourself in public as a married couple may also be considered reconciliation.
The Date Your Separation Begins is Important
The date that your separation starts begins the one-year period for obtaining a divorce. It may also serve as the date that the court uses to place a value on your marital assets when you are dividing property in the divorce.
What Are the North Carolina Laws for Property Division?
Division of marital assets and debts is an important part of divorce. Division can be settled in one of three ways in North Carolina:
The division of assets is basically a three-step process:
Typically North Carolina courts favor an equitable 50/50 split of debts and assets. Courts consider various factors in determining asset distribution, but marital misconduct is not one of them unless the misconduct lowered the value of the marital estate, such as gambling, reckless spending, or the hiding of financial accounts.
What Are the Legal Issues for Children in Divorce?
The number one concern for most parents going through separation and divorce is their children. The children’s emotional and material well-being is of critical importance in working out the terms of a separation agreement between spouses.
Child support payments help provide for the financial needs of the children while child custody terms in a parenting agreement ensure children can spend as much time with each parent as possible.
In divorce cases in which child custody is contested, the court will decide based on the best interests of the child.
Which Decisions Might the Court Make and Which Decisions Do the Divorcing Parties Make?
In North Carolina, the court prefers, and encourages, the divorcing parties to work out the terms of child custody, property distribution and support between themselves whenever possible. However, if the parties are unable to come to an agreement, the court will make decisions for you. It is, of course, to your advantage to avoid this. Your attorney at Wilson, Reives & Silverman will work with your spouse’s legal representative to try to resolve disagreements and make a trial unnecessary.
But in the cases in which the other party will not compromise or makes unreasonable demands, litigation becomes the only option. These cases might include instances of domestic violence or other significant wrongdoing. In these instances, you need to feel confident that you are represented by an experienced divorce attorney with trial experience.
Our divorce lawyers at Wilson, Reives & Silverman know that divorce can be very stressful. We know how to deal with the conflicts that arise when divorcing couples are negotiating issues such as child custody and support. We bring compassion to our work while maintaining a firm, and when needed, an aggressive stance in defense of our client’s legal rights. Your best interest will be your attorney’s top priority.
Divorce can be a new start towards a better future when handled professionally by an experienced family law attorney. Call our firm today at (919) 439-8872 to schedule your confidential consultation.