North Carolina – Filing for Divorce

0
16

DIFFICULTY: Legal assistance is required

Initial Filing Fee: $90 to $250

North Carolina is a no-fault divorce state, which sets it apart from many other states where you have to cite “cause” in order to divorce. There has been movement recently to secure a “Healthy Marriage Act” in order to make it more difficult to divorce in the state, but it has yet to be approved. Under current North Carolina law, a couple must be separated for at least a year in order to file for divorce. The only exception to this rule is in case of incurable insanity.

North Carolina also differs from most states in that it requires you to arrange all the details of alimony and child custody through a mediator before you get your “absolute divorce.” However, the divorce proceedings themselves do not address these issues. You must ensure that they are handled prior to the divorce, or else alimony is not allowed and all property goes to the person who holds the title. North Carolina seeks to streamline the divorce process once it is filed and not waste court time with petty arguments. This is why arbitration is mandatory and it is your responsibility to work out your property, financial and child commitments.

Step 1: Verify you are Eligible to File for Divorce in North Carolina

You must be a resident in the state of North Carolina for six months before you can file for a divorce there. Other than in the case of insanity, you have to be living separately from your spouse for at least a year before you can file for divorce. If you move to North Carolina and live there for the year that you are separated, you are qualified to file for divorce even if your spouse does not live in the state.

Step 2: Start Your Mandated Separation

If you have not already done so, you need to begin your separation. North Carolina does not require legal paperwork in order to be considered “separated.” Some states, like Georgia, count living in separate rooms as being separated, but North Carolina requires separate residences for a full year. It does not matter if your spouse sees this living arrangement as permanent; as long as you separated with the intention of divorce, the clock starts ticking the minute you are living in different locations.

Step 3: Seek an Arbiter

One thing you can do while you are waiting for the year to pass is find a mediator or arbiter for your estate. In North Carolina, divorce paperwork does not address child custody, alimony, child support, or any sort of property division. All marital property should be divided 50/50, but as with any divorce things can become contentious, so you want someone who can help you reach an agreement. Mediation is a requirement in North Carolina for all Equitable Distribution cases before you can proceed to court. Child custody mediation is also mandatory before court.

Step 4: Reach a Settlement Agreement

Once you have agreed to all the terms of the divorce, you will put these terms in writing in the form of a settlement agreement. Do not rush this process. It is natural to want to get through the divorce process quickly, but remember that you have no right to bring up alimony or property division after the divorce is final if it has not been brought up before. Your settlement agreement does not have to be complete (though it is better if it is); as long as your complaints and requests are on record before the divorce, you can still sue for these items after the divorce. If they are not on record, you have forfeited all rights to those items.

Step 5: File the Complaint for Divorce

Once your year of separation is up, you can file for divorce immediately, even if your settlement agreement is not final. Divorce paperwork gets filed with the clerk of court’s office in your county. The filing fee varies from county to county, but the process is the same. Keep a copy for yourself, file the original, and provide another copy to be served to your spouse.

 • Example of a Divorce Packet

Step 6: Serve Your Spouse and Wait 30 Days

In North Carolina, you have to wait 30 days before you can get a court date. That is not from the date on which you file, but from the date when you serve your spouse. Other states only require ten or 15 days, but North Carolina requires a full 30-day waiting period. It is best to have the local sheriff serve the papers, which incurs a $15 fee in most counties, but you can also have a disinterested third party do it. The papers cannot be given to your spouse by you or by your children.

Step 7: Get a Court Date

After the 30-day waiting period, you must return to the clerk of court’s office and get a court date for your divorce. There is no set time frame on this. You are going to get whatever date is open in the calendar. However, the date will be at least 10 days out, so that you can properly notify the defendant (your spouse.)

Step 8: Send Notice of Hearing

Ten days before the hearing, you must mail the “Notice of Hearing” to the defendant. This ensures sure they know when the process will come to an end. They are supposed to attend, but the divorce can be granted even if they choose not to come.

Step 9: Go to Court

You can go to court with or without an attorney, though an attorney is advised if it has been a contentious process or if you have yet to finalize your settlement agreement. You do have to answer questions, and there might be witnesses. By the end of the hearing, your case will be decided and you will be given a “Certificate of Absolute Divorce” and “Judgment: Absolute Divorce,” which must both be filed with the clerk.

Additional Resources

 • North Carolina Divorce Information Packet